distinguishing “good cause” 22 showing for sealing documents produced in discovery from “compelling reasons” 23 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 22 showing for sealing documents produced in discovery from “compelling reasons” 23 standard when merits-related documents are part of court record
- even stipulated protective orders 18 require good cause 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
11 PAMELA ROLLE, an individual, on Case No.: CV 20-10232 FMO (PDx)
behalf of herself and others similarly
12 situated, STIPULATED PROTECTIVE
ORDER1
13 Plaintiff,
[Discovery Document: Referred to
14 v. Magistrate Judge Patricia Donahue]
15 ALLEGIANT AIR, LLC, a Nevada DISCOVERY MATTER
limited liability company; and DOES
16 1 through 50, inclusive,
17 Defendants.
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28 1 This Stipulated Protective Order is substantially based on the model protective
1 1. INTRODUCTION
2 1.1 PURPOSES AND LIMITATIONS
3 Discovery in this action is likely to involve production of confidential,
4 proprietary, or private information for which special protection from public
5 disclosure and from use for any purpose other than prosecuting this litigation may
6 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
7 enter the following Stipulated Protective Order. The parties acknowledge that this
8 Order does not confer blanket protections on all disclosures or responses to
9 discovery and that the protection it affords from public disclosure and use extends
10 only to the limited information or items that are entitled to confidential treatment
11 under the applicable legal principles.
12 1.2 GOOD CAUSE STATEMENT
13 This action is likely to involve proprietary business and confidential employee
14 information for which special protection from public disclosure and from use for
15 any purpose other than prosecution of this action is warranted.
16 Such confidential and proprietary materials and information consist of, among
17 other things, confidential business, commercial or financial information (including
18 information implicating privacy rights of third parties), and private information of
19 Defendant’s current and former employees who are not parties to this action
20 (including payroll records), that is otherwise generally unavailable to the public, or
21 which may be privileged or otherwise protected from disclosure under state or
22 federal statutes, court rules, case decisions, or common law.
23 Accordingly, to expedite the flow of information, to facilitate the prompt
24 resolution of disputes over confidentiality of discovery materials, to adequately
25 protect information the parties are entitled to keep confidential, to ensure that the
26 parties are permitted reasonable necessary uses of such material in preparation for
27 and in the conduct of trial, to address their handling at the end of the litigation, and
28 serve the ends of justice, a protective order for such information is justified in this
1 matter. It is the intent of the parties that information will not be designated as
2 confidential for tactical reasons and that nothing be so designated without a good
3 faith belief that it has been maintained in a confidential, non-public manner, and
4 there is good cause why it should not be part of the public record of this case.
5 1.3 ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
6 SEAL
7 The parties further acknowledge, as set forth in Section 12.3, below, that this
8 Stipulated Protective Order does not entitle them to file confidential information
9 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
10 and the standards that will be applied when a party seeks permission from the court
11 to file material under seal.
12 There is a strong presumption that the public has a right of access to judicial
13 proceedings and records in civil cases. In connection with non-dispositive motions,
14 good cause must be shown to support a filing under seal. See Kamakana v. City and
15 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
16 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
17 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
18 require good cause showing), and a specific showing of good cause or compelling
19 reasons with proper evidentiary support and legal justification, must be made with
20 respect to Protected Material that a party seeks to file under seal. The parties’ mere
21 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
22 without the submission of competent evidence by declaration, establishing that the
23 material sought to be filed under seal qualifies as confidential, privileged, or
24 otherwise protectable—constitute good cause.
25 Further, if a party requests sealing related to a dispositive motion or trial, then
26 compelling reasons, not only good cause, for the sealing must be shown, and the
27 relief sought shall be narrowly tailored to serve the specific interest to be protected.
28 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
1 each item or type of information, document, or thing sought to be filed or introduced
2 under seal in connection with a dispositive motion or trial, the party seeking
3 protection must articulate compelling reasons, supported by specific facts and legal
4 justification, for the requested sealing order. Again, competent evidence supporting
5 the application to file documents under seal must be provided by declaration.
6 Any document that is not confidential, privileged, or otherwise protectable in
7 its entirety will not be filed under seal if the confidential portions can be redacted. If
8 documents can be redacted, then a redacted version for public viewing, omitting
9 only the confidential, privileged, or otherwise protectable portions of the document,
10 shall be filed. Any application that seeks to file documents under seal in their
11 entirety should include an explanation of why redaction is not feasible.
12
13 2. DEFINITIONS
14 2.1 Action: this pending federal lawsuit.
15 2.2 Challenging Party: a Party or Non-Party that challenges the designation
16 of information or items under this Order.
17 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
18 how it is generated, stored or maintained) or tangible things that qualify for
19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the
20 Good Cause Statement.
21 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
22 their support staff).
23 2.5 Designating Party: a Party or Non-Party that designates information or
24 items that it produces in disclosures or in responses to discovery as
25 “CONFIDENTIAL.”
26 2.6 Disclosure or Discovery Material: all items or information, regardless
27 of the medium or manner in which it is generated, stored, or maintained (including,
28 among other things, testimony, transcripts, and tangible things), that are produced or
1 generated in disclosures or responses to discovery in this matter.
2 2.7 Expert: a person with specialized knowledge or experience in a matter
3 pertinent to the litigation who has been retained by a Party or its counsel to serve as
4 an expert witness or as a consultant in this Action.
5 2.8 House Counsel: attorneys who are employees of a party to this Action.
6 House Counsel does not include Outside Counsel of Record or any other outside
7 counsel.
8 2.9 Non-Party: any natural person, partnership, corporation, association, or
9 other legal entity not named as a Party to this action.
10 2.10 Outside Counsel of Record: attorneys who are not employees of a party
11 to this Action but are retained to represent or advise a party to this Action and have
12 appeared in this Action on behalf of that party or are affiliated with a law firm which
13 has appeared on behalf of that party, and includes support staff.
14 2.11 Party: any party to this Action, including all of its officers, directors,
15 employees, consultants, retained experts, and Outside Counsel of Record (and their
16 support staffs).
17 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
18 Discovery Material in this Action.
19 2.13 Professional Vendors: persons or entities that provide litigation support
20 services (e.g., photocopying, videotaping, translating, preparing exhibits or
21 demonstrations, and organizing, storing, or retrieving data in any form or medium)
22 and their employees and subcontractors.
23 2.14 Protected Material: any Disclosure or Discovery Material that is
24 designated as “CONFIDENTIAL.”
25 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
26 from a Producing Party.
27 3. SCOPE
28 The protections conferred by this Stipulation and Order cover not only
1 Protected Material (as defined above), but also (1) any information copied or
2 extracted from Protected Material; (2) all copies, excerpts, summaries, or
3 compilations of Protected Material; and (3) any testimony, conversations, or
4 presentations by Parties or their Counsel that might reveal Protected Material.
5 Any use of Protected Material at trial shall be governed by the orders of the trial
6 judge. This Order does not govern the use of Protected Material at trial.
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8 4. DURATION
9 FINAL DISPOSITION of the action is defined as the conclusion of any
10 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
11 has run. Except as set forth below, the terms of this protective order apply through
12 FINAL DISPOSITION of the action. The parties may stipulate that the they will be
13 contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
14 but will have to file a separate action for enforcement of the agreement once all
15 proceedings in this case are complete.
16 Once a case proceeds to trial, information that was designated as
17 CONFIDENTIAL or maintained pursuant to this protective order used or introduced
18 as an exhibit at trial becomes public and will be presumptively available to all
19 members of the public, including the press, unless compelling reasons supported by
20 specific factual findings to proceed otherwise are made to the trial judge in advance
21 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
22 showing for sealing documents produced in discovery from “compelling reasons”
23 standard when merits-related documents are part of court record). Accordingly, for
24 such materials, the terms of this protective order do not extend beyond the
25 commencement of the trial.
26
27 5. DESIGNATING PROTECTED MATERIAL
28 5.1 Exercise of Restraint and Care in Designating Material for Protection.
1 Each Party or Non-Party that designates information or items for protection under
2 this Order must take care to limit any such designation to specific material that
3 qualifies under the appropriate standards. The Designating Party must designate for
4 protection only those parts of material, documents, items, or oral or written
5 communications that qualify so that other portions of the material, documents,
6 items, or communications for which protection is not warranted are not swept
7 unjustifiably within the ambit of this Order.
8 Mass, indiscriminate, or routinized designations are prohibited. Designations
9 that are shown to be clearly unjustified or that have been made for an improper
10 purpose (e.g., to unnecessarily encumber the case development process or to impose
11 unnecessary expenses and burdens on other parties) may expose the Designating
12 Party to sanctions.
13 If it comes to a Designating Party’s attention that information or items that it
14 designated for protection do not qualify for protection, that Designating Party must
15 promptly notify all other Parties that it is withdrawing the inapplicable designation.
16 5.2 Manner and Timing of Designations. Except as otherwise provided in
17 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
18 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
19 under this Order must be clearly so designated before the material is disclosed or
20 produced.
21 Designation in conformity with this Order requires:
22 (a) for information in documentary form (e.g., paper or electronic documents,
23 but excluding transcripts of depositions or other pretrial or trial proceedings), that
24 the Producing Party affix at a minimum, the legend “CONFIDENTIAL”
25 (hereinafter “CONFIDENTIAL legend”), to each page that contains protected
26 material. If only a portion or portions of the material on a page qualifies for
27 protection, the Producing Party also must clearly identify the protected portion(s)
28 (e.g., by making appropriate markings in the margins).
1 A Party or Non-Party that makes original documents available for
2 inspection need not designate them for protection until after the inspecting Party
3 has indicated which documents it would like copied and produced. During the
4 inspection and before the designation, all of the material made available for
5 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
6 identified the documents it wants copied and produced, the Producing Party must
7 determine which documents, or portions thereof, qualify for protection under this
8 Order. Then, before producing the specified documents, the Producing Party must
9 affix the “CONFIDENTIAL legend” to each page that contains Protected Material.
10 If only a portion or portions of the material on a page qualifies for protection, the
11 Producing Party also must clearly identify the protected portion(s) (e.g., by making
12 appropriate markings in the margins).
13 (b) for testimony given in depositions that the Designating Party identify the
14 Disclosure or Discovery Material on the record, before the close of the deposition
15 all protected testimony.
16 (c) for information produced in some form other than documentary and for
17 any other tangible items, that the Producing Party affix in a prominent place on the
18 exterior of the container or containers in which the information is stored the legend
19 “CONFIDENTIAL.” If only a portion or portions of the information warrants
20 protection, the Producing Party, to the extent practicable, shall identify the
21 protected portion(s).
22 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
23 failure to designate qualified information or items does not, standing alone, waive
24 the Designating Party’s right to secure protection under this Order for such
25 material. Upon timely correction of a designation, the Receiving Party must make
26 reasonable efforts to assure that the material is treated in accordance with the
27 provisions of this Order.
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1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
3 designation of confidentiality at any time that is consistent with the Court’s
4 Scheduling Order.
5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
6 resolution process under Local Rule 37.1 et seq.
7 6.3 The burden of persuasion in any such challenge proceeding shall be on
8 the Designating Party. Frivolous challenges, and those made for an improper
9 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
10 parties) may expose the Challenging Party to sanctions. Unless the Designating
11 Party has waived or withdrawn the confidentiality designation, all parties shall
12 continue to afford the material in question the level of protection to which it is
13 entitled under the Producing Party’s designation until the Court rules on the
14 challenge.
15
16 7. ACCESS TO AND USE OF PROTECTED MATERIAL
17 7.1 Basic Principles. A Receiving Party may use Protected Material that is
18 disclosed or produced by another Party or by a Non-Party in connection with this
19 Action for prosecuting, defending, or attempting to settle this Action only and may
20 not be used by a Receiving Party for any purpose in another action. Such Protected
21 Material may be disclosed only to the categories of persons and under the
22 conditions described in this Order. When the Action has been terminated, a
23 Receiving Party must comply with the provisions of section 13 below (FINAL
24 DISPOSITION).
25 Protected Material must be stored and maintained by a Receiving Party at a
26 location and in a secure manner that ensures that access is limited to the persons
27 authorized under this Order.
28 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
1 otherwise ordered by the court or permitted in writing by the Designating Party, a
2 Receiving Party may disclose any information or item designated
3 “CONFIDENTIAL” only to:
4 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
5 as employees of said Outside Counsel of Record to whom it is reasonably necessary
6 to disclose the information for this Action;
7 (b) the officers, directors, and employees (including House Counsel) of the
8 Receiving Party to whom disclosure is reasonably necessary for this Action;
9 (c) Experts (as defined in this Order) of the Receiving Party to whom
10 disclosure is reasonably necessary for this Action and who have signed the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
12 (d) the court and its personnel;
13 (e) court reporters and their staff;
14 (f) professional jury or trial consultants, mock jurors, and Professional
15 Vendors to whom disclosure is reasonably necessary for this Action and who have
16 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
17 (g) the author or recipient of a document containing the information or a
18 custodian or other person who otherwise possessed or knew the information;
19 (h) during their depositions, witnesses, and attorneys for witnesses, in the
20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
21 requests that the witness sign the form attached as Exhibit A hereto; and (2) they
22 will not be permitted to keep any confidential information unless they sign the
23 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
24 agreed by the Designating Party or ordered by the court. Pages of transcribed
25 deposition testimony or exhibits to depositions that reveal Protected Material may
26 be separately bound by the court reporter and may not be disclosed to anyone
27 except as permitted under this Stipulated Protective Order; and
28 (i) any mediator or settlement officer, and their supporting personnel,
1 mutually agreed upon by any of the parties engaged in settlement discussions.
2
3 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
4 IN OTHER LITIGATION
5 If a Party is served with a subpoena or a court order issued in other litigation
6 that compels disclosure of any information or items designated in this Action as
7 “CONFIDENTIAL,” that Party must:
8 (a) promptly notify in writing the Designating Party. Such notification shall
9 include a copy of the subpoena or court order;
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 this Stipulated Protective Order; and
14 (c) cooperate with respect to all reasonable procedures sought to be pursued
15 by the Designating Party whose Protected Material may be affected.
16 If the Designating Party timely seeks a protective order, the Party served with
17 the subpoena or court order shall not produce any information designated in this
18 action as “CONFIDENTIAL” before a determination by the court from which the
19 subpoena or order issued, unless the Party has obtained the Designating Party’s
20 permission. The Designating Party shall bear the burden and expense of seeking
21 protection in that court of its confidential material and nothing in these provisions
22 should be construed as authorizing or encouraging a Receiving Party in this Action
23 to disobey a lawful directive from another court.
24
25 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
26 PRODUCED IN THIS LITIGATION
27 (a) The terms of this Order are applicable to information produced by a Non-
28 Party in this Action and designated as “CONFIDENTIAL.” Such information
1 produced by Non-Parties in connection with this litigation is protected by the
2 remedies and relief provided by this Order. Nothing in these provisions should be
3 construed as prohibiting a Non-Party from seeking additional protections.
4 (b) In the event that a Party is required, by a valid discovery request, to
5 produce a Non-Party’s confidential information in its possession, and the Party is
6 subject to an agreement with the Non-Party not to produce the Non-Party’s
7 confidential information, then the Party shall:
8 (1) promptly notify in writing the Requesting Party and the Non-Party
9 that some or all of the information requested is subject to a confidentiality
10 agreement with a Non-Party;
11 (2) promptly provide the Non-Party with a copy of the Stipulated
12 Protective Order in this Action, the relevant discovery request(s), and a reasonably
13 specific description of the information requested; and
14 (3) make the information requested available for inspection by the
15 Non-Party, if requested.
16 (c) If the Non-Party fails to seek a protective order from this court within 14
17 days of receiving the notice and accompanying information, the Receiving Party
18 may produce the Non-Party’s confidential information responsive to the discovery
19 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
20 not produce any information in its possession or control that is subject to the
21 confidentiality agreement with the Non-Party before a determination by the court.
22 Absent a court order to the contrary, the Non-Party shall bear the burden and
23 expense of seeking protection in this court of its Protected Material.
24
25 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
27 Protected Material to any person or in any circumstance not authorized under this
28 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
1 writing the Designating Party of the unauthorized disclosures, (b) use its best
2 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the
3 person or persons to whom unauthorized disclosures were made of all the terms of
4 this Order, and (d) request such person or persons to execute the “Acknowledgment
5 and Agreement to Be Bound” that is attached hereto as Exhibit A.
6
7 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
8 PROTECTED MATERIAL
9 When a Producing Party gives notice to Receiving Parties that certain
10 inadvertently produced material is subject to a claim of privilege or other
11 protection, the obligations of the Receiving Parties are those set forth in Federal
12 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
13 whatever procedure may be established in an e-discovery order that provides for
14 production without prior privilege review. Pursuant to Federal Rule of Evidence
15 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
16 of a communication or information covered by the attorney-client privilege or work
17 product protection, the parties may incorporate their agreement in the stipulated
18 protective order submitted to the court.
19
20 12. MISCELLANEOUS
21 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
22 person to seek its modification by the Court in the future.
23 12.2 Right to Assert Other Objections. By stipulating to the entry of this
24 Protective Order no Party waives any right it otherwise would have to object to
25 disclosing or producing any information or item on any ground not addressed in
26 this Stipulated Protective Order. Similarly, no Party waives any right to object on
27 any ground to use in evidence of any of the material covered by this Protective
28 Order.
1 12.3 Filing Protected Material. A Party that seeks to file under seal any
2 Protected Material must comply with Civil Local Rule 79-5. Protected Material
3 may only be filed under seal pursuant to a court order authorizing the sealing of the
4 specific Protected Material at issue. If a Party's request to file Protected Material
5 under seal is denied by the court, then the Receiving Party may file the information
6 in the public record unless otherwise instructed by the court.
7
8 13. FINAL DISPOSITION
9 After the final disposition of this Action, as defined in paragraph 4, within 60
10 days of a written request by the Designating Party, each Receiving Party must
11 return all Protected Material to the Producing Party or destroy such material. As
12 used in this subdivision, “all Protected Material” includes all copies, abstracts,
13 compilations, summaries, and any other format reproducing or capturing any of the
14 Protected Material. Whether the Protected Material is returned or destroyed, the
15 Receiving Party must submit a written certification to the Producing Party (and, if
16 not the same person or entity, to the Designating Party) by the 60 day deadline that
17 (1) identifies (by category, where appropriate) all the Protected Material that was
18 returned or destroyed and (2) affirms that the Receiving Party has not retained any
19 copies, abstracts, compilations, summaries or any other format reproducing or
20 capturing any of the Protected Material. Notwithstanding this provision, Counsel
21 are entitled to retain an archival copy of all pleadings, motion papers, trial,
22 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
23 and trial exhibits, expert reports, attorney work product, and consultant and expert
24 work product, even if such materials contain Protected Material. Any such archival
25 copies that contain or constitute Protected Material remain subject to this Protective
26 Order as set forth in Section 4 (DURATION).
27
28 14. Any violation of this Order may be punished by any and all appropriate
1 | measures including, without limitation, contempt proceedings and/or
2 | monetary sanctions.
3
4 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
5 Los
6 | DATED: August 10, 2021 _ Falisee Deena hue
7 United States Magistrate Judge
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[PROPOSED] STIPULATED PROTECTIVE ORDER
1 EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _____________________________ [full name], of _________________
4
[full address], declare under penalty of perjury that I have read in its entirety and
5
understand the Stipulated Protective Order that was issued by the United States
6
District Court for the Central District of California on [date] in the case of Pamela
7
Rolle v. Allegiant Air, LLC, Case No. CV 20-10232 FMO (PDx). I agree to comply
8
with and to be bound by all the terms of this Stipulated Protective Order and I
9
understand and acknowledge that failure to so comply could expose me to sanctions
10
and punishment in the nature of contempt. I solemnly promise that I will not
11
disclose in any manner any information or item that is subject to this Stipulated
12
Protective Order to any person or entity except in strict compliance with the
13
provisions of this Order.
14
I further agree to submit to the jurisdiction of the United States District Court
15
for the Central District of California for the purpose of enforcing the terms of this
16
Stipulated Protective Order, even if such enforcement proceedings occur after
17
termination of this action. I hereby appoint __________________________ [full
18
name] of _______________________________________ [full address and
19
telephone number] as my California agent for service of process in connection
20
with this action or any proceedings related to enforcement of this Stipulated
21
Protective Order.
22
Date: ______________________________________
23
City and State where sworn and signed: _________________________________
24
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Printed name: _______________________________
26
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Signature: __________________________________
28