distinguishing 8 “good cause” showing for sealing documents produced in discovery from 9 “compelling reasons” standard when merits-related documents are part of court 10 record
How later courts described this case
- distinguishing 8 “good cause” showing for sealing documents produced in discovery from 9 “compelling reasons” standard when merits-related documents are part of court 10 record
- even stipulated protective orders require good cause showing
Written by the judges who cited it.
The opinion
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IN THE UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
PAVIELL JOHNSON ) Civil Action No. 5:20-cv-1952-GW-KK
11
Plaintiff, )
12 ) STIPULATED PROTECTIVE ORDER
v. )
13
)
14 ) [NOTE CHANGES BY COURT]
GREEN DOT CORPORATION )
15
Defendant. )
16 )
17
1. A. PURPOSES AND LIMITATIONS
18
19 Discovery in this action is likely to involve production of confidential, proprietary
20 or private information for which special protection from public disclosure and from
use for any purpose other than prosecuting this litigation may be warranted.
21
Accordingly, the parties hereby stipulate to and petition the Court to enter the
22
following Stipulated Protective Order. The parties acknowledge that this Order
23
does not confer blanket protections on all disclosures or responses to discovery and
24
that the protection it affords from public disclosure and use extends only to the
25
limited information or items that are entitled to confidential treatment under the
26
applicable legal principles.
27
28
1 B. GOOD CAUSE STATEMENT
2 This action is likely to involve trade secrets, and other valuable research,
3 development, commercial, financial, technical and/or proprietary information for
4 which special protection from public disclosure and from use for any purpose other
5 than prosecution of this action is warranted. Such confidential and proprietary
6 materials and information consist of, among other things, confidential business or
7 financial information, information regarding confidential business practices, or
8 other confidential research, development, or commercial information (including
9 information implicating privacy rights of third parties), information otherwise
10 generally unavailable to the public, or which may be privileged or otherwise
11 protected from disclosure under state or federal statutes, court rules, case decisions,
12 or common law. Accordingly, to expedite the flow of information, to facilitate the
prompt resolution of disputes over confidentiality of discovery materials, to
13
adequately protect information the parties are entitled to keep confidential, to
14
ensure that the parties are permitted reasonable necessary uses of such material in
15
preparation for and in the conduct of trial, to address their handling at the end of
16
the litigation, and serve the ends of justice, a protective order for such information
17
is justified in this matter. It is the intent of the parties that information will not be
18
designated as confidential for tactical reasons and that nothing be so designated
19
without a good faith belief that it has been maintained in a confidential, non-public
20
manner, and there is good cause why it should not be part of the public record of
21
this case.
22
23 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
24 SEAL
25 The parties further acknowledge, as set forth in Section 12.3, below, that this
26 Stipulated Protective Order does not entitle them to file confidential information
27 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
28
1 and the standards that will be applied when a party seeks permission from the court
2 to file material under seal.
3 There is a strong presumption that the public has a right of access to judicial
4 proceedings and records in civil cases. In connection with non-dispositive
5 motions, good cause must be shown to support a filing under seal. See Kamakana
6 v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.
7 Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.
8 Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
protective orders require good cause showing), and a specific showing of good
9
cause or compelling reasons with proper evidentiary support and legal justification,
10
must be made with respect to Protected Material that a party seeks to file under
11
seal. The parties’ mere designation of Disclosure or Discovery Material as
12
CONFIDENTIAL does not— without the submission of competent evidence by
13
declaration, establishing that the material sought to be filed under seal qualifies as
14
confidential, privileged, or otherwise protectable—constitute good cause.
15
Further, if a party requests sealing related to a dispositive motion or trial,
16
then compelling reasons, not only good cause, for the sealing must be shown, and
17
the relief sought shall be narrowly tailored to serve the specific interest to be
18
protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
19
2010). For each item or type of information, document, or thing sought to be filed
20
or introduced under seal in connection with a dispositive motion or trial, the party
21
seeking protection must articulate compelling reasons, supported by specific facts
22
and legal justification, for the requested sealing order. Again, competent evidence
23
supporting the application to file documents under seal must be provided by
24
declaration.
25
Any document that is not confidential, privileged, or otherwise protectable in
26
its entirety will not be filed under seal if the confidential portions can be redacted.
27 If documents can be redacted, then a redacted version for public viewing, omitting
28
1 only the confidential, privileged, or otherwise protectable portions of the
2 document, shall be filed. Any application that seeks to file documents under seal
3 in their entirety should include an explanation of why redaction is not feasible.
4
5 2. DEFINITIONS
6
2.1 Action: this pending federal lawsuit.
7
2.2 Challenging Party: a Party or Non-Party that challenges the designation
8
of information or items under this Order.
9
2.3 “CONFIDENTIAL” Information or Items: information (regardless of
10 how it is generated, stored or maintained) or tangible things that qualify for
11 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
12 the Good Cause Statement.
13 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
14 their support staff).
15 2.5 Designating Party: a Party or Non-Party that designates information or
16 items that it produces in disclosures or in responses to discovery as
17 “CONFIDENTIAL.”
18 2.6 Disclosure or Discovery Material: all items or information, regardless of
19 the medium or manner in which it is generated, stored, or maintained (including,
20 among other things, testimony, transcripts, and tangible things), that are produced
21 or generated in disclosures or responses to discovery in this matter.
22 2.7 Expert: a person with specialized knowledge or experience in a matter
23 pertinent to the litigation who has been retained by a Party or its counsel to serve as
24 an expert witness or as a consultant in this Action.
25 2.8 House Counsel: attorneys who are employees of a party to this Action.
26 House Counsel does not include Outside Counsel of Record or any other outside
27 counsel.
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1 2.9 Non-Party: any natural person, partnership, corporation, association or
2 other legal entity not named as a Party to this action.
3 2.10 Outside Counsel of Record: attorneys who are not employees of a party
4 to this Action but are retained to represent or advise a party to this Action and have
5 appeared in this Action on behalf of that party or are affiliated with a law firm that
6 has appeared on behalf of that party, and includes support staff.
7 2.11 Party: any party to this Action, including all of its officers, directors,
8 employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
9
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
10
Discovery Material in this Action.
11
2.13 Professional Vendors: persons or entities that provide litigation support
12
services (e.g., photocopying, videotaping, translating, preparing exhibits or
13
demonstrations, and organizing, storing, or retrieving data in any form or medium)
14
and their employees and subcontractors.
15
2.14 Protected Material: any Disclosure or Discovery Material that is
16
designated as “CONFIDENTIAL.”
17
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
18
from a Producing Party.
19
20 3. SCOPE
21 The protections conferred by this Stipulation and Order cover not only
22 Protected Material (as defined above), but also (1) any information copied or
23 extracted from Protected Material; (2) all copies, excerpts, summaries, or
24 compilations of Protected Material; and (3) any testimony, conversations, or
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.
28
1 4. DURATION
2 Once a case proceeds to trial, information that was designated as
3 CONFIDENTIAL or maintained pursuant to this protective order used or
4 introduced as an exhibit at trial becomes public and will be presumptively available
5 to all members of the public, including the press, unless compelling reasons
6 supported by specific factual findings to proceed otherwise are made to the trial
7 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing
8 “good cause” showing for sealing documents produced in discovery from
9 “compelling reasons” standard when merits-related documents are part of court
10 record). Accordingly, the terms of this protective order do not extend beyond the
11 commencement of the trial.
12
5. DESIGNATING PROTECTED MATERIAL
13
5.1 Exercise of Restraint and Care in Designating Material for Protection.
14
Each Party or Non-Party that designates information or items for protection under
15
this Order must take care to limit any such designation to specific material that
16
qualifies under the appropriate standards. The Designating Party must designate
17
for protection only those parts of material, documents, items or oral or written
18
communications that qualify so that other portions of the material, documents,
19
items or communications for which protection is not warranted are not swept
20 unjustifiably within the ambit of this Order.
21
Mass, indiscriminate or routinized designations are prohibited. Designations
22
that are shown to be clearly unjustified or that have been made for an improper
23
purpose (e.g., to unnecessarily encumber the case development process or to
24
impose unnecessary expenses and burdens on other parties) may expose the
25
Designating Party to sanctions.
26
If it comes to a Designating Party’s attention that information or items that
27
it designated for protection do not qualify for protection, that Designating Party
28
1 must promptly notify all other Parties that it is withdrawing the inapplicable
2 designation.
3 5.2 Manner and Timing of Designations. Except as otherwise provided in
4 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
5 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
6 under this Order must be clearly so designated before the material is disclosed or
7 produced.
8 Designation in conformity with this Order requires:
9 (a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
10
proceedings), that the Producing Party affix at a minimum, the legend
11
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
12
contains protected material. If only a portion of the material on a page qualifies for
13
protection, the Producing Party also must clearly identify the protected portion(s)
14
(e.g., by making appropriate markings in the margins).
15
A Party or Non-Party that makes original documents available for inspection
16
need not designate them for protection until after the inspecting Party has indicated
17
which documents it would like copied and produced. During the inspection and
18
before the designation, all of the material made available for inspection shall be
19
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
20
documents it wants copied and produced, the Producing Party must determine
21
which documents, or portions thereof, qualify for protection under this Order.
22
Then, before producing the specified documents, the Producing Party must affix
23
the “CONFIDENTIAL legend” to each page that contains Protected Material. If
24
only a portion of the material on a page qualifies for protection, the Producing
25
Party also must clearly identify the protected portion(s) (e.g., by making
26
appropriate markings in the margins).
27
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1 (b) for testimony given in depositions that the Designating Party
2 identifies the Disclosure or Discovery Material on the record, before the
3 close of the deposition all protected testimony.
4 (c) for information produced in some form other than documentary
5 and for any other tangible items, that the Producing Party affix in a
6 prominent place on the exterior of the container or containers in which the
7 information is stored the legend “CONFIDENTIAL.” If only a portion or
8 portions of the information warrants protection, the Producing Party, to the
9 extent practicable, shall identify the protected portion(s).
10
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
11
failure to designate qualified information or items does not, standing alone, waive
12
the Designating Party’s right to secure protection under this Order for such
13
material. Upon timely correction of a designation, the Receiving Party must make
14
reasonable efforts to assure that the material is treated in accordance with the
15
provisions of this Order.
16
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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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6.1 Timing of Challenges. Any Party or Non-Party may challenge a
19
designation of confidentiality at any time that is consistent with the Court’s
20
Scheduling Order.
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6.2 Meet and Confer. The Challenging Party shall initiate the dispute
22
resolution process under Local Rule 37-1 et seq.
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6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
24
joint stipulation pursuant to Local Rule 37-2. The Designating Party is the moving
25
party pursuant to Local Rule 37-2.
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6.4 The burden of persuasion in any such challenge proceeding shall be on
27
the Designating Party. Frivolous challenges, and those made for an improper
28
1 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
2 parties) may expose the Challenging Party to sanctions. Unless the Designating
3 Party has waived or withdrawn the confidentiality designation, all parties shall
4 continue to afford the material in question the level of protection to which it is
5 entitled under the Producing Party’s designation until the Court rules on the
6 challenge.
7
8 7. ACCESS TO AND USE OF PROTECTED MATERIAL
9 7.1 Basic Principles. A Receiving Party may use Protected Material that is
10 disclosed or produced by another Party or by a Non-Party in connection with this
11 Action only for prosecuting, defending or attempting to settle this Action and in
12 any appeal in this matter. Such Protected Material may be disclosed only to the
13 categories of persons and under the conditions described in this Order. When the
14 Action has been terminated, a Receiving Party must comply with the provisions of
15 section 13 below (FINAL DISPOSITION).
16 Protected Material must be stored and maintained by a Receiving Party at a
17 location and in a secure manner that ensures that access is limited to the persons
18 authorized under this Order.
19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
20 otherwise ordered by the court or permitted in writing by the Designating Party, a
21 Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
22
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
23
well as employees of said Outside Counsel of Record to whom it is reasonably
24
25 necessary to disclose the information for this Action;
26 (b) the officers, directors, and employees (including House Counsel) of
27 the Receiving Party to whom disclosure is reasonably necessary for this Action;
28
1 (c) Experts (as defined in this Order) of the Receiving Party to whom
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 (e) court reporters and their staff;
6 (f) professional jury or trial consultants, mock jurors, and Professional
7 Vendors to whom disclosure is reasonably necessary for this Action and who have
8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9 (g) the author or recipient of a document containing the information or a
10 custodian or other person who otherwise possessed or knew the information;
11 (h) during their depositions, witnesses, and attorneys for witnesses, in the
12
Action to whom disclosure is reasonably necessary provided: (1) the deposing
13
party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
14
they will not be permitted to keep any confidential information unless they sign the
15
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
16
agreed by the Designating Party or ordered by the court. Pages of transcribed
17
deposition testimony or exhibits to depositions that reveal Protected Material may
18
be separately bound by the court reporter and may not be disclosed to anyone
19
except as permitted under this Stipulated Protective Order; and
20
(i) any mediator or settlement officer, and their supporting personnel,
21
mutually agreed upon by any of the parties engaged in settlement discussions.
22
23
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
24
IN OTHER LITIGATION
25
If a Party is served with a subpoena or a court order issued in other litigation
26
that compels disclosure of any information or items designated in this Action as
27
“CONFIDENTIAL,” that Party must:
28
1 (a) promptly notify in writing the Designating Party. Such notification
2 shall include a copy of the subpoena or court order;
3 (b) promptly notify in writing the party who caused the subpoena or order
4 to issue in the other litigation that some or all of the material covered by the
5 subpoena or order is subject to this Protective Order. Such notification shall
6 include a copy of this Stipulated Protective Order; and
7 (c) cooperate with respect to all reasonable procedures sought to be
8 pursued by the Designating Party whose Protected Material may be affected.
9 If the Designating Party timely seeks a protective order, the Party served
10 with the subpoena or court order shall not produce any information designated in
11 this action as “CONFIDENTIAL” before a determination by the court from which
12 the subpoena or order issued, unless the Party has obtained the Designating Party’s
13 permission. The Designating Party shall bear the burden and expense of seeking
14 protection in that court of its confidential material and nothing in these provisions
15 should be construed as authorizing or encouraging a Receiving Party in this Action
16 to disobey a lawful directive from another court.
17
18 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
19 BE PRODUCED IN THIS LITIGATION
20
(a) The terms of this Order are applicable to information produced by a
21
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
22
produced by Non-Parties in connection with this litigation is protected by the
23
remedies and relief provided by this Order. Nothing in these provisions should be
24
construed as prohibiting a Non-Party from seeking additional protections.
25
(b) In the event that a Party is required, by a valid discovery request, to
26
produce a Non-Party’s confidential information in its possession, and the Party is
27
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1 subject to an agreement with the Non-Party not to produce the Non-Party’s
2 confidential information, then the Party shall:
3 (1) promptly notify in writing the Requesting Party and the
4 Non-Party that some or all of the information requested is subject to a
5 confidentiality agreement with a Non-Party;
6
(2) promptly provide the Non-Party with a copy of the
7
Stipulated Protective Order in this Action, the relevant discovery request(s),
8
and a reasonably specific description of the information requested; and
9
(3) make the information requested available for inspection
10
by the Non-Party, if requested.
11
(c) If the Non-Party fails to seek a protective order from this court within
12
14 days of receiving the notice and accompanying information, the Receiving
13
Party may produce the Non-Party’s confidential information responsive to the
14
discovery request. If the Non-Party timely seeks a protective order, the Receiving
15
Party shall not produce any information in its possession or control that is subject
16
to the confidentiality agreement with the Non-Party before a determination by the
17
court. Absent a court order to the contrary, the Non-Party shall bear the burden
18
and expense of seeking protection in this court of its Protected Material.
19
20
21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
22 If a Receiving Party learns that, by inadvertence or otherwise, it has
23 disclosed Protected Material to any person or in any circumstance not authorized
24 under this Stipulated Protective Order, the Receiving Party must immediately (a)
25 notify in writing the Designating Party of the unauthorized disclosures, (b) use its
26 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
27 the person or persons to whom unauthorized disclosures were made of all the terms
28 of this Order, and (d) request such person or persons to execute the
1 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
2 A.
3
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
4
PROTECTED MATERIAL
5
When a Producing Party gives notice to Receiving Parties that certain
6
inadvertently produced material is subject to a claim of privilege or other
7
protection, the obligations of the Receiving Parties are those set forth in Federal
8
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
9
whatever procedure may be established in an e-discovery order that provides for
10
production without prior privilege review. Pursuant to Federal Rule of Evidence
11
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
12
of a communication or information covered by the attorney-client privilege or work
13
product protection, the parties may incorporate their agreement in the stipulated
14
protective order submitted to the court.
15
16
12. MISCELLANEOUS
17
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
18
person to seek its modification by the Court in the future.
19
12.2 Right to Assert Other Objections. By stipulating to the entry of this
20
Protective Order, no Party waives any right it otherwise would have to object to
21
disclosing or producing any information or item on any ground not addressed in
22
this Stipulated Protective Order. Similarly, no Party waives any right to object on
23
any ground to use in evidence of any of the material covered by this Protective
24
Order.
25
12.3 Filing Protected Material. A Party that seeks to file under seal any
26
Protected Material must comply with Local Civil Rule 79-5. Protected Material
27
may only be filed under seal pursuant to a court order authorizing the sealing of the
28
1 specific Protected Material at issue. If a Party’s request to file Protected Material
2 under seal is denied by the court, then the Receiving Party may file the information
3 in the public record unless otherwise instructed by the court.
4
13. FINAL DISPOSITION
5
After the final disposition of this Action, as defined in paragraph 4, within
6
60 days of a written request by the Designating Party, each Receiving Party must
7
return all Protected Material to the Producing Party or destroy such material.
8
Whether the Protected Material is returned or destroyed, the Receiving Party must
9
submit a written certification to the Producing Party (and, if not the same person or
10
entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
11
category, where appropriate) all the Protected Material that was returned or
12
destroyed and (2) affirms that the Receiving Party has not retained any copies.
13
Notwithstanding this provision, Counsel are entitled to retain an archival copy of
14
all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
15
memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
16 work product, and consultant and expert work product, even if such materials
17 contain Protected Material. Any such archival copies that contain or constitute
18 Protected Material remain subject to this Protective Order as set forth in Section 4
19 (DURATION).
20
21
22
23
24
25
26
27
28
1
5 14. VIOLATION
3 Any violation of this Order may be punished by appropriate measures including,
4 without limitation, contempt proceedings and/or monetary sanctions.
5
6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
7
8 DATED: September 2, 2021
9
10 /s/ Stephanie R. Tatar
11 Stephanie R. Tatar, Attorney for Plaintiff
12
13 SZJeffrey R. Witham
14 Jeffrey Witham, Attorney for Defendant
15 ATTESTATION
16 hereby attest that my office received permission to affix Stephanie R. Tatar’s
17 ||Signature to this Protective Order.
1g Dated: September 2, 2021
19
90 ||S/Jeffrey_R. Witham
21 || Jeffrey Witham, Attorney for Defendant
22
23 ORDER
74 || The Proposed Protective Order is hereby GRANTED.
25 aly
9/2/2021
27 || HONORABLE KENLY KIYA KATO
28 UNITED STATES MAGISTRATE JUDGE
15
PROTECTIVE ORDER