The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 SOUTHERN DIVISION
11 CENTERLINE HOUSING Case No. 8:21-CV-00107-JVS-JDEx
PARTNERSHIP I, L.P. – SERIES 2, f/k/a
12 RELATED CAPITAL HOUSING
PARTNERSHIP I, L.P. – SERIES 2, a STIPULATED PROTECTIVE
13 Delaware limited partnership; and RCHP
SLP I L.P. – SERIES 2, a Delaware ORDER
14 limited partnership,
15 Plaintiffs/Counter-
Defendants,
16
v.
17
PALM COMMUNITIES, f/k/a PALM
18
DESERT DEVELOPMENT COMPANY,
a California corporation; and HOUSING
19
CORPORATION OF AMERICA, a Utah
20 non-profit corporation,
21 Defendants/Counterclaimants,
v.
22
ALDEN TORCH FINANCIAL, LLC, a
23 Delaware limited liability company,
24 Counter-Defendant.
25
26
Based on the parties’ Stipulation and for good cause shown, the Court finds
27
and orders as follows.
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1 Plaintiffs and Counter-Defendants Centerline Housing Partnership I, L.P. –
2 Series 2, f/k/a Related Housing Partnership I, L.P. – Series 2 (“Centerline”) and
3 RCHP SLP I L.P. – Series 2 (“RCHP” and, collectively with Centerline,
4 “Plaintiffs/Counter-Defendants”) Counter-Defendant Alden Torch Financial LLC
5 (“Alden Torch”), and Defendants/Counterclaimants Palm Communities, f/k/a Palm
6 Desert Development Company (“PDDC”) and Housing Corporation of America
7
(“HCA” and, collectively with PDDC, “Defendants/Counterclaimants”), hereby
8
submit this Stipulated Protective Order. Plaintiffs/Counter-Defendants, Alden
9
Torch, and Defendants/Counterclaimants are referred to herein individually as a
10
“Party” and collectively as the “Parties.”
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1. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
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proprietary or private information for which special protection from public
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disclosure and from use for any purpose other than pursuing this litigation may be
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warranted. Accordingly, the Parties hereby stipulate to and petition the Court to
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enter the following Stipulated Protective Order. The Parties acknowledge that this
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Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends
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only to the limited information or items that are entitled to confidential treatment
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under the applicable legal principles.
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2. GOOD CAUSE STATEMENT
22
23 This action is likely to involve confidential valuation, commercial, financial,
24 and business information for which special protection from public disclosure and
25 from use for any purpose other than prosecution of this action is warranted.
26 Accordingly, to expedite the flow of information, to facilitate the prompt resolution
27 of disputes over confidentiality of discovery materials, to adequately protect
28 information the Parties are entitled to keep confidential, to ensure that the Parties
1 are permitted reasonable necessary uses of such material in preparation for and in
2 the conduct of trial, to address their handling at the end of the litigation, and serve
3 the ends of justice, a protective order for such information is justified in this
4 matter. It is the intent of the Parties that information will not be designated as
5 confidential for tactical reasons and that nothing be so designated without a good
6 faith belief that it has been maintained in a confidential, non-public manner, and
7
there is good cause why it should not be part of the public record of this case.
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3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
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The Parties further acknowledge, as set forth in Section 14.3, below, that this
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Stipulated Protective Order does not entitle them to file confidential information
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under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
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and the standards that will be applied when a party seeks permission from the court
13
to file material under seal. There is a strong presumption that the public has a right
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of access to judicial proceedings and records in civil cases. In connection with
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non-dispositive motions, good cause must be shown to support a filing under seal.
16
See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir.
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2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002),
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Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999)
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(even stipulated protective orders require good cause showing), and a specific
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showing of good cause or compelling reasons with proper evidentiary support and
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legal justification, must be made with respect to Protected Material that a party
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23 seeks to file under seal. The Parties’ mere designation of Disclosure or Discovery
24 Material as CONFIDENTIAL does not— without the submission of competent
25 evidence by declaration, establishing that the material sought to be filed under seal
26 qualifies as confidential, privileged, or otherwise protectable—constitute good
27 cause.
28 Further, if a Party requests sealing related to a dispositive motion or trial,
1 then compelling reasons, not only good cause, for the sealing must be shown, and
2 the relief sought shall be narrowly tailored to serve the specific interest to be
3 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
4 2010). For each item or type of information, document, or thing sought to be filed
5 or introduced under seal, the party seeking protection must articulate compelling
6 reasons, supported by specific facts and legal justification, for the requested sealing
7
order. Again, competent evidence supporting the application to file documents
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under seal must be provided by declaration.
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Any document that is not confidential, privileged, or otherwise protectable
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in its entirety will not be filed under seal if the confidential portions can be
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redacted. If documents can be redacted, then a redacted version for public
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viewing, omitting only the confidential, privileged, or otherwise protectable
13
portions of the document, shall be filed. Any application that seeks to file
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documents under seal in their entirety should include an explanation of why
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redaction is not feasible.
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4. DEFINITIONS
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4.1 Action: this pending federal lawsuit.
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4.2 Challenging Party: a Party or Non-Party that challenges the
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designation of information or items under this Order.
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4.3 “CONFIDENTIAL” Information or Items: information (regardless of
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how it is generated, stored or maintained) or tangible things that qualify for
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23 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
24 the Good Cause Statement.
25 4.4 Counsel: Outside Counsel of Record and In-House Counsel (as well
26 as their support staff).
27
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1 4.5 Designating Party: a Party or Non-Party that designates information or
2 items that it produces in disclosures or in responses to discovery as
3 “CONFIDENTIAL.”
4 4.6 Disclosure or Discovery Material: all items or information, regardless
5 of the medium or manner in which it is generated, stored, or maintained (including,
6 among other things, testimony, transcripts, and tangible things), that are produced
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or generated in disclosures or responses to discovery.
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4.7 Expert: a person with specialized knowledge or experience in a matter
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pertinent to the litigation who has been retained by a Party or its counsel to serve
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as an expert witness or as a consultant in this Action.
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4.8 In-House Counsel: attorneys who are employees of a Party to this
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Action. In-House Counsel does not include Outside Counsel of Record or any
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other outside counsel.
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4.9 Non-Party: any natural person, partnership, corporation, association or
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other legal entity not named as a Party to this action.
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4.10 Outside Counsel of Record: attorneys who are not employees of a
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party to this Action but are retained to represent a party to this Action and have
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appeared in this Action on behalf of that Party or are affiliated with a law firm that
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has appeared on behalf of that Party, and includes support staff.
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4.11 Party: any party to this Action, including all of its officers, directors,
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employees, representatives, consultants, retained experts, and Outside Counsel of
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23 Record (and their support staffs).
24 4.12 Producing Party: a Party or Non-Party that produces Disclosure or
25 Discovery Material in this Action.
26 4.13 Professional Vendors: persons or entities that provide litigation
27 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
28 demonstrations, and organizing, storing, or retrieving data in any form or medium)
1 and their employees and subcontractors.
2 4.14 Protected Material: any Disclosure or Discovery Material that is
3 designated as “CONFIDENTIAL.”
4 4.15 Receiving Party: a Party that receives Disclosure or Discovery
5 Material from a Producing Party.
6 5. SCOPE
7
The protections conferred by this Stipulation and Order cover not only
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Protected Material (as defined above), but also (1) any information copied or
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extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or
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presentations by Parties or their Counsel that might reveal Protected Material.
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Any use of Protected Material at trial shall be governed by the orders of the
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trial judge and other applicable authorities. This Order does not govern the use of
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Protected Material at trial.
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6. DURATION
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Once a case proceeds to trial, information that was designated as
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CONFIDENTIAL or maintained pursuant to this Stipulated Protective Order used
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or introduced as an exhibit at trial becomes public and will be presumptively
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available to all members of the public, including the press, unless compelling
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reasons supported by specific factual findings to proceed otherwise are made to the
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trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
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23 (distinguishing “good cause” showing for sealing documents produced in
24 discovery from “compelling reasons” standard when merits-related documents are
25 part of court record).
26 7. DESIGNATING PROTECTED MATERIAL
27 7.1 Exercise of Restraint and Care in Designating Material for Protection.
28 Each Party or Non-Party that designates information or items for protection under
1 this Order must take care to limit any such designation to specific material that
2 qualifies under the appropriate standards. The Designating Party must designate
3 for protection only those parts of material, documents, items or oral or written
4 communications that qualify so that other portions of the material, documents,
5 items or communications for which protection is not warranted are not swept
6 unjustifiably within the ambit of this Order.
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Mass, indiscriminate or routinized designations are prohibited. Designations
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that are shown to be clearly unjustified or that have been made for an improper
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purpose (e.g., to unnecessarily encumber the case development process or to
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impose unnecessary expenses and burdens on other Parties) may expose the
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Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it
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designated for protection do not qualify for protection, that Designating Party must
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promptly notify all other Parties that it is withdrawing the inapplicable designation.
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7.2 Manner and Timing of Designations. Except as otherwise provided in
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this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material
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that qualifies for protection under this Order must be clearly so designated before
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the material is disclosed or produced.
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Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic
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documents, but excluding transcripts of depositions or other pretrial or trial
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23 proceedings), that the Producing Party affix at a minimum, the legend
24 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
25 contains protected material. If only a portion of the material on a page qualifies for
26 protection, the Producing Party also must clearly identify the protected portion(s)
27 (e.g., by making appropriate markings in the margins).
28 A Party or Non-Party that makes original documents available for inspection
1 need not designate them for protection until after the inspecting Party has indicated
2 which documents it would like copied and produced. During the inspection and
3 before the designation, all of the material made available for inspection shall be
4 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
5 documents it wants copied and produced, the Producing Party must determine
6 which documents, or portions thereof, qualify for protection under this Order.
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Then, before producing the specified documents, the Producing Party must affix
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the “CONFIDENTIAL legend” to each page that contains Protected Material. If
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only a portion of the material on a page qualifies for protection, the Producing
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Party also must clearly identify the protected portion(s) (e.g., by making
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appropriate markings in the margins).
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(b) for testimony given in depositions, that the Designating Party
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either (i) identifies on the record, before the close of the deposition, as
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“CONFIDENTIAL” by specifying all portions of the testimony that qualify as
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“CONFIDENTIAL”; or (ii) designate the entirety of the testimony at the
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deposition as “CONFIDENTIAL” (before the deposition is concluded) with the
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right to identify more specific portions of the testimony as to which protection is
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sought within 30 days following receipt of the deposition transcript. In
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circumstances where portions of the deposition testimony are designated for
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protection, the transcript pages containing “CONFIDENTIAL” information shall
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be separately bound by the court reporter, who must affix to the top of each page
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23 the legend “CONFIDENTIAL,” as instructed by the Designating Party.
24 (c) for information produced in some form other than documentary
25 and for any other tangible items, that the Producing Party affix in a prominent
26 place on the exterior of the container or containers in which the information is
27 stored the legend “CONFIDENTIAL.” If only a portion or portions of the
28 information warrants protection, the Producing Party, to the extent practicable,
1 shall identify the protected portion(s).
2 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
3 failure to designate qualified information or items does not, standing alone, waive
4 the Designating Party’s right to secure protection under this Order for such
5 material. Upon timely correction of a designation, the Receiving Party must make
6 reasonable efforts to assure that the material is treated in accordance with the
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provisions of this Order.
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8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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8.1. Timing of Challenges. Any Party or Non-Party may challenge a
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designation of confidentiality at any time that is consistent with the Court’s
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Scheduling Order.
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8.2 Meet and Confer. The Challenging Party shall initiate the dispute
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resolution process under Local Rule 37-1 et seq.
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8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
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joint stipulation pursuant to Local Rule 37-2.
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8.4 The burden of persuasion in any such challenge proceeding shall be
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on the Designating Party. Frivolous challenges, and those made for an improper
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purpose (e.g., to harass or impose unnecessary expenses and burdens on other
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Parties) may expose the Challenging Party to sanctions. Unless the Designating
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Party has waived or withdrawn the confidentiality designation, all Parties shall
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continue to afford the material in question the level of protection to which it is
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23 entitled under the Producing Party’s designation until the Court rules on the
24 challenge.
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9. ACCESS TO AND USE OF PROTECTED MATERIAL
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9.1 Basic Principles. A Receiving Party may use Protected Material that is
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disclosed or produced by another Party or by a Non-Party in connection with this
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1 Action only for prosecuting, defending or attempting to settle this Action. Such
2 Protected Material may be disclosed only to the categories of persons and under
3 the conditions described in this Order. When the Action has been terminated, a
4 Receiving Party must comply with the provisions of section 15 below (FINAL
5 DISPOSITION).
6 Protected Material must be stored and maintained by a Receiving Party at a
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location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
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9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
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otherwise ordered by the court or permitted in writing by the Designating Party, a
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Receiving Party may disclose any information or item designated
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“CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this Action, as
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well as employees of said Outside Counsel of Record to whom it is reasonably
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necessary to disclose the information for this Action;
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(b) the officers, directors, and employees (including In-House
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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for
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this Action;
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(c) Experts (as defined in this Order) of the Receiving Party to whom
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disclosure is reasonably necessary for this Action and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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23 (d) the court and its personnel;
24 (e) court reporters and their staff;
25 (f) professional jury or trial consultants, mock jurors, and Professional
26 Vendors to whom disclosure is reasonably necessary for this Action and who have
27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
28 (g) the author or recipient of a document containing the information or
1 a custodian or other person who otherwise possessed or knew the information;
2 (h) during their depositions in the Action, witnesses and attorneys for
3 witnesses to whom disclosure is reasonably necessary provided: (1) the witness
4 signs the form attached as Exhibit A hereto; and (2) the witness and attorneys for
5 the witness will not be permitted to keep any confidential information unless they
6 sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
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otherwise agreed by the Designating Party or ordered by the court; and
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(i) any mediators or settlement officers and their supporting personnel,
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mutually agreed upon by any of the Parties engaged in settlement discussions.
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10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
11 PRODUCED IN OTHER LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation
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that compels disclosure of any information or items designated in this Action as
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“CONFIDENTIAL,” that Party must:
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(a) promptly notify in writing the Designating Party. Such
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notification shall include a copy of the subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or
18
order to issue in the other litigation that some or all of the material covered by the
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subpoena or order is subject to this Stipulated Protective Order. Such notification
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shall include a copy of this Stipulated Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be
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23 pursued by the Designating Party whose Protected Material may be affected. If the
24 Designating Party timely seeks a protective order, the Party served with the
25 subpoena or court order shall not produce any information designated in this action
26 as “CONFIDENTIAL” before a determination by the court from which the
27 subpoena or order issued, unless the Party has obtained the Designating Party’s
28 permission. The Designating Party shall bear the burden and expense of seeking
1 protection in that court of its confidential material and nothing in these provisions
2 should be construed as authorizing or encouraging a Receiving Party in this Action
3 to disobey a lawful directive from another court.
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11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
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PRODUCED IN THIS LITIGATION
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(a) The terms of this Order are applicable to information produced by
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a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
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information produced by Non-Parties in connection with this litigation is protected
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by the remedies and relief provided by this Stipulated Protective Order. Nothing in
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these provisions should be construed as prohibiting a Non-Party from seeking
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12 additional protections.
13 (b) In the event that a Party is required, by a valid discovery request,
14 to produce a Non-Party’s confidential information in its possession, and the Party
15 is subject to an agreement with the Non-Party not to produce the Non-Party’s
16 confidential information, then the Party shall:
17 (1) promptly notify in writing the Requesting Party and the Non-Party
18 that some or all of the information requested is subject to a confidentiality
19 agreement with a Non-Party;
20 (2) promptly provide the Non-Party with a copy of the Stipulated
21 Protective Order in this Action, the relevant discovery request(s), and a reasonably
22 specific description of the information requested; and
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(3) make the information requested available for inspection by the
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Non-Party, if requested.
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(c) If the Non-Party fails to seek a protective order from this court
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within 14 days of receiving the notice and accompanying information, the
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Receiving Party may produce the Non-Party’s confidential information responsive
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1 to the discovery request. If the Non-Party timely seeks a protective order, the
2 Receiving Party shall not produce any information in its possession or control that
3 is subject to the confidentiality agreement with the Non-Party before a
4 determination by the court. Absent a court order to the contrary, the Non-Party
5 shall bear the burden and expense of seeking protection in this court of its
6 Protected Material.
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12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has
9
disclosed Protected Material to any person or in any circumstance not authorized
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under this Stipulated Protective Order, the Receiving Party must immediately (a)
11
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
12
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
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14 the person or persons to whom unauthorized disclosures were made of all the terms
15 of this Order, and (d) request such person or persons to execute the
16 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A.
17 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
18
19 When a Producing Party gives notice to Receiving Parties that certain
20 inadvertently produced material is subject to a claim of privilege or other
21 protection, the obligations of the Receiving Parties are those set forth in Federal
22 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
23 whatever procedure may be established in an e-discovery order that provides for
24 production without prior privilege review. Inadvertent production by any Party of
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material containing privileged attorney-client or other privileged communications,
26
attorney work product, or other information not subject to discovery, shall not
27
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1 constitute a waiver of any privilege, immunity or other right not to produce such
2 material.
3 14. MISCELLANEOUS
4 14.1 Right to Further Relief. Nothing in this Order abridges the right of
5 any person to seek its modification by the Court in the future.
6 14.2 Right to Assert Other Objections. By stipulating to the entry of this
7
Protective Order, no Party waives any right it otherwise would have to object to
8
disclosing or producing any information or item on any ground not addressed in
9
this Stipulated Protective Order. Similarly, no Party waives any right to object on
10
any ground to use in evidence of any of the material covered by this Stipulated
11
Protective Order.
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14.3 Filing Protected Material. A Party that seeks to file under seal any
13
Protected Material must comply with Local Civil Rule 79-5. Protected Material
14
may only be filed under seal pursuant to a court order authorizing the sealing of the
15
specific Protected Material. If a Party’s request to file Protected Material under
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seal is denied by the court, then the Receiving Party may file the information in the
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public record unless otherwise instructed by the court.
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15. FINAL DISPOSITION
19
After the final disposition of this Action, as defined in paragraph 6, within
20
60 days of a written request by the Designating Party, each Receiving Party must
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return all Protected Material to the Producing Party or destroy such material. As
22
23 used in this subdivision, “all Protected Material” includes all copies, abstracts,
24 compilations, summaries, and any other format reproducing or capturing any of the
25 Protected Material. Whether the Protected Material is returned or destroyed, the
26 Receiving Party must submit a written certification to the Producing Party (and, if
27 not the same person or entity, to the Designating Party) by the 60-day deadline that
28 (1) identifies (by category, where appropriate) all the Protected Material that was
I |/returned or destroyed and (2) affirms that the Receiving Party has not retained any
2 || copies, abstracts, compilations, summaries or any other format reproducing or
3 || capturing any of the Protected Material. Notwithstanding this provision, Counsel
4 are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition
6 and trial exhibits, expert reports, attorney work product, and consultant and expert
7 | work product, even if such materials contain Protected Material. Any such
8 archival copies that contain or constitute Protected Material remain subject to this
Stipulated Protective Order.
10 16. VIOLATION
Any violation of this Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary sanctions.
14
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6 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
17
1g || DATED: June 15, 2021
19
20 f KE Af
1 HN D. EARLY
nited States Magistrate Judge
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15
STIPULATED PROTECTIVE ORDER
1 EXHIBIT “A”
2 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND BY
3 STIPULATED PROTECTIVE ORDER
4
5 This is to certify that I, the undersigned, have read and am fully familiar
6 with the provisions of the Stipulated Protective Order filed and entered in the case
7 Centerline Housing Partnership I, L.P. – Series 2, et al. v. Palm Communities, et
8 al., Case No. 8:21-CV-00107-JVS-JDE (C.D. Cal.) (hereinafter referred to as
9 “Stipulated Protective Order”).
10 As a condition precedent to the disclosure to me of any Confidential
11 Information pursuant to the Stipulated Protective Order, or my obtaining any
12 information contained in said material, I hereby agree that the Stipulated Protective
13 Order is binding upon me, and I further agree to keep all such material and
14 information in strictest confidence and otherwise to observe, comply with, and be
15 bound by the provisions of the Stipulated Protective Order.
16
I declare under penalty of perjury under the laws of the United States of
17
America that the foregoing is true and correct.
18
Signature:
19
Name:
20 Address:
21
22 Telephone:
23
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26
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