distinguishing “good cause” 8 showing for sealing documents produced in discovery from “compelling reasons” 9 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 8 showing for sealing documents produced in discovery from “compelling reasons” 9 standard when merits-related documents are part of court record
- even stipulated protective orders 6 require good cause showing
Written by the judges who cited it.
The opinion
1
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5
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7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
BROOKE FORTSON, Case No. CV21-00384 CJC (GJSx)
11
12 Plaintiff, STIPULATED PROTECTIVE
ORDER1
13 v.
14
CITY OF LOS ANGELES, A
15
MUNICIPAL ENTITY; CHIEF
16 MICHEL MOORE; AND DOES 1-
10, INCLUSIVE,
17
18
Defendants.
19
20
1. A. PURPOSES AND LIMITATIONS
21
Discovery in this action is likely to involve production of confidential,
22
proprietary or private information for which special protection from public
23
disclosure and from use for any purpose other than prosecuting this litigation may
24
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
25
enter the following Stipulated Protective Order. The parties acknowledge that this
26
27
Order does not confer blanket protections on all disclosures or responses to
1
discovery and that the protection it affords from public disclosure and use extends
2
only to the limited information or items that are entitled to confidential treatment
3
under the applicable legal principles.
4
B. GOOD CAUSE STATEMENT
5
This action is likely to involve official information from law enforcement
6
records, relating to ongoing criminal and administrative investigations; and HIPPA
7
protected medical records, (including information implicating privacy rights of third
8
parties), which is information otherwise generally unavailable to the public, or
9
which may be privileged or otherwise protected from disclosure under state or
10
federal statutes, court rules, case decisions, or common law. Accordingly, to
11
expedite the flow of information, to facilitate the prompt resolution of disputes over
12
confidentiality of discovery materials, to adequately protect information the parties
13
are entitled to keep confidential, to ensure that the parties are permitted reasonable
14
necessary uses of such material in preparation for and in the conduct of trial, to
15
address their handling at the end of the litigation, and serve the ends of justice, a
16
protective order for such information is justified in this matter. It is the intent of the
17
parties that information will not be designated as confidential for tactical reasons
18
and that nothing be so designated without a good faith belief that it has been
19
maintained in a confidential, non-public manner, and there is good cause why it
20
should not be part of the public record of this case.
21
C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
22
The parties further acknowledge, as set forth in Section 12.3, below, that this
23
Stipulated Protective Order does not entitle them to file confidential information
24
under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
25
and the standards that will be applied when a party seeks permission from the court
26
to file material under seal.
27
There is a strong presumption that the public has a right of access to judicial
1
proceedings and records in civil cases. In connection with non-dispositive motions,
2
good cause must be shown to support a filing under seal. See Kamakana v. City and
3
County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
4
Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
5
Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
6
require good cause showing), and a specific showing of good cause or compelling
7
reasons with proper evidentiary support and legal justification, must be made with
8
respect to Protected Material that a party seeks to file under seal. The parties’ mere
9
designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
10
without the submission of competent evidence by declaration, establishing that the
11
material sought to be filed under seal qualifies as confidential, privileged, or
12
otherwise protectable—constitute good cause.
13
Further, if a party requests sealing related to a dispositive motion or trial, then
14
compelling reasons, not only good cause, for the sealing must be shown, and the
15
relief sought shall be narrowly tailored to serve the specific interest to be protected.
16
See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
17
each item or type of information, document, or thing sought to be filed or introduced
18
under seal in connection with a dispositive motion or trial, the party seeking
19
protection must articulate compelling reasons, supported by specific facts and legal
20
justification, for the requested sealing order. Again, competent evidence supporting
21
the application to file documents under seal must be provided by declaration.
22
Any document that is not confidential, privileged, or otherwise protectable in
23
its entirety will not be filed under seal if the confidential portions can be redacted.
24
If documents can be redacted, then a redacted version for public viewing, omitting
25
only the confidential, privileged, or otherwise protectable portions of the document,
26
shall be filed. Any application that seeks to file documents under seal in their
27
2. DEFINITIONS
1
2.1 Action: this pending federal lawsuit
2
2.2 Challenging Party: a Party or Non-Party that challenges the
3
designation of information or items under this Order.
4
2.3 “CONFIDENTIAL” Information or Items: information (regardless of
5
how it is generated, stored or maintained) or tangible things that qualify for
6
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
7
the Good Cause Statement.
8
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
9
their support staff).
10
2.5 Designating Party: a Party or Non-Party that designates information or
11
items that it produces in disclosures or in responses to discovery as
12
“CONFIDENTIAL.”
13
2.6 Disclosure or Discovery Material: all items or information, regardless
14
of the medium or manner in which it is generated, stored, or maintained (including,
15
among other things, testimony, transcripts, and tangible things), that are produced or
16
generated in disclosures or responses to discovery in this matter.
17
2.7 Expert: a person with specialized knowledge or experience in a matter
18
pertinent to the litigation who has been retained by a Party or its counsel to serve as
19
an expert witness or as a consultant in this Action.
20
2.8 House Counsel: attorneys who are employees of a party to this Action.
21
House Counsel does not include Outside Counsel of Record or any other outside
22
counsel.
23
2.9 Non-Party: any natural person, partnership, corporation, association or
24
other legal entity not named as a Party to this action.
25
2.10 Outside Counsel of Record: attorneys who are not employees of a
26
party to this Action but are retained to represent or advise a party to this Action and
27
that has appeared on behalf of that party, and includes support staff.
1
2.11 Party: any party to this Action, including all of its officers, directors,
2
employees, consultants, retained experts, and Outside Counsel of Record (and their
3
support staffs).
4
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
5
Discovery Material in this Action.
6
2.13 Professional Vendors: persons or entities that provide litigation
7
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
8
demonstrations, and organizing, storing, or retrieving data in any form or medium)
9
and their employees and subcontractors.
10
2.14 Protected Material: any Disclosure or Discovery Material that is
11
designated as “CONFIDENTIAL.”
12
2.15 Receiving Party: a Party that receives Disclosure or Discovery
13
Material from a Producing Party.
14
3. SCOPE
15
The protections conferred by this Stipulation and Order cover not only
16
Protected Material (as defined above), but also (1) any information copied or
17
extracted from Protected Material; (2) all copies, excerpts, summaries, or
18
compilations of Protected Material; and (3) any testimony, conversations, or
19
presentations by Parties or their Counsel that might reveal Protected Material.
20
Any use of Protected Material at trial shall be governed by the orders of the
21
trial judge. This Order does not govern the use of Protected Material at trial.
22
4. DURATION
23
FINAL DISPOSITION of the action is defined as the conclusion of any
24
appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
25
has run. Except as set forth below, the terms of this protective order apply through
26
FINAL DISPOSITION of the action. The parties may stipulate that the they will be
27
contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
but will have to file a separate action for enforcement of the agreement once all
1
proceedings in this case are complete.
2
Once a case proceeds to trial, information that was designated as
3
CONFIDENTIAL or maintained pursuant to this protective order used or introduced
4
as an exhibit at trial becomes public and will be presumptively available to all
5
members of the public, including the press, unless compelling reasons supported by
6
specific factual findings to proceed otherwise are made to the trial judge in advance
7
of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
8
showing for sealing documents produced in discovery from “compelling reasons”
9
standard when merits-related documents are part of court record). Accordingly, for
10
such materials, 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 for
17
protection only those parts of material, documents, items or oral or written
18
communications that qualify so that other portions of the material, documents, items
19
or communications for which protection is not warranted are not swept unjustifiably
20
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 impose
24
unnecessary expenses and burdens on other parties) may expose the Designating
25
Party to sanctions.
26
If it comes to a Designating Party’s attention that information or items that it
27
promptly notify all other Parties that it is withdrawing the inapplicable designation.
1
5.2 Manner and Timing of Designations. Except as otherwise provided in
2
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
3
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
4
under this Order must be clearly so designated before the material is disclosed or
5
produced.
6
Designation in conformity with this Order requires:
7
(a) for information in documentary form (e.g., paper or electronic
8
documents, but excluding transcripts of depositions or other pretrial or trial
9
proceedings), that the Producing Party affix at a minimum, the legend
10
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
11
contains protected material. If only a portion of the material on a page qualifies for
12
protection, the Producing Party also must clearly identify the protected portion(s)
13
(e.g., by making appropriate markings in the margins).
14
A Party or Non-Party that makes original documents available for inspection
15
need not designate them for protection until after the inspecting Party has indicated
16
which documents it would like copied and produced. During the inspection and
17
before the designation, all of the material made available for inspection shall be
18
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
19
documents it wants copied and produced, the Producing Party must determine which
20
documents, or portions thereof, qualify for protection under this Order. Then,
21
before producing the specified documents, the Producing Party must affix the
22
“CONFIDENTIAL legend” to each page that contains Protected Material. If only a
23
portion of the material on a page qualifies for protection, the Producing Party also
24
must clearly identify the protected portion(s) (e.g., by making appropriate markings
25
in the margins).
26
(b) for testimony given in depositions that the Designating Party identifies
27
deposition all protected testimony.
1
(c) for information produced in some form other than documentary and
2
for any other tangible items, that the Producing Party affix in a prominent place on
3
the exterior of the container or containers in which the information is stored the
4
legend “CONFIDENTIAL.” If only a portion or portions of the information
5
warrants protection, the Producing Party, to the extent practicable, shall identify the
6
protected portion(s).
7
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
8
failure to designate qualified information or items does not, standing alone, waive
9
the Designating Party’s right to secure protection under this Order for such material.
10
Upon timely correction of a designation, the Receiving Party must make reasonable
11
efforts to assure that the material is treated in accordance with the provisions of this
12
Order.
13
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
14
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
15
designation of confidentiality at any time that is consistent with the Court’s
16
Scheduling Order.
17
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
18
resolution process under Local Rule 37.1 et seq.
19
6.3 The burden of persuasion in any such challenge proceeding shall be on
20
the Designating Party. Frivolous challenges, and those made for an improper
21
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
22
parties) may expose the Challenging Party to sanctions. Unless the Designating
23
Party has waived or withdrawn the confidentiality designation, all parties shall
24
continue to afford the material in question the level of protection to which it is
25
entitled under the Producing Party’s designation until the Court rules on the
26
challenge.
27
7.1 Basic Principles. A Receiving Party may use Protected Material that is
1
disclosed or produced by another Party or by a Non-Party in connection with this
2
Action only for prosecuting, defending or attempting to settle this Action. Such
3
Protected Material may be disclosed only to the categories of persons and under the
4
conditions described in this Order. When the Action has been terminated, a
5
Receiving Party must comply with the provisions of section 13 below (FINAL
6
DISPOSITION).
7
Protected Material must be stored and maintained by a Receiving Party at a
8
location and in a secure manner that ensures that access is limited to the persons
9
authorized under this Order.
10
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
11
otherwise ordered by the court or permitted in writing by the Designating Party, a
12
Receiving Party may disclose any information or item designated
13
“CONFIDENTIAL” only to:
14
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
15
well as employees of said Outside Counsel of Record to whom it is reasonably
16
necessary to disclose the information for this Action;
17
(b) the officers, directors, and employees (including House Counsel) of
18
the Receiving Party to whom disclosure is reasonably necessary for this Action;
19
(c) Experts (as defined in this Order) of the Receiving Party to whom
20
disclosure is reasonably necessary for this Action and who have signed the
21
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
22
(d) the court and its personnel;
23
(e) court reporters and their staff;
24
(f) professional jury or trial consultants, mock jurors, and Professional
25
Vendors to whom disclosure is reasonably necessary for this Action and who have
26
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
27
custodian or other person who otherwise possessed or knew the information;
1
(h) during their depositions or at trial, witnesses, and attorneys for
2
witnesses, in the Action to whom disclosure is reasonably necessary provided they
3
will not be permitted to keep any confidential information unless they sign the
4
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
5
agreed by the Designating Party or ordered by the court. Pages of transcribed
6
deposition testimony or exhibits to depositions that reveal Protected Material may
7
be separately bound by the court reporter and may not be disclosed to anyone except
8
as permitted under this Stipulated Protective Order; and
9
(i) any mediator or settlement officer, and their supporting personnel,
10
mutually agreed upon by any of the parties engaged in settlement discussions.
11
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
12
IN OTHER LITIGATION
13
If a Party is served with a subpoena or a court order issued in other litigation
14
that compels disclosure of any information or items designated in this Action as
15
“CONFIDENTIAL,” that Party must:
16
(a) promptly notify in writing the Designating Party. Such notification
17
shall include a copy of the subpoena or court order;
18
(b) promptly notify in writing the party who caused the subpoena or order
19
to issue in the other litigation that some or all of the material covered by the
20
subpoena or order is subject to this Protective Order. Such notification shall include
21
a copy of this Stipulated Protective Order; and
22
(c) cooperate with respect to all reasonable procedures sought to be
23
pursued by the Designating Party whose Protected Material may be affected.
24
If the Designating Party timely seeks a protective order, the Party served with
25
the subpoena or court order shall not produce any information designated in this
26
action as “CONFIDENTIAL” before a determination by the court from which the
27
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.
4
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
5
PRODUCED IN THIS LITIGATION
6
(a) The terms of this Order are applicable to information produced by a
7
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
8
produced by Non-Parties in connection with this litigation is protected by the
9
remedies and relief provided by this Order. Nothing in these provisions should be
10
construed as prohibiting a Non-Party from seeking additional protections.
11
(b) In the event that a Party is required, by a valid discovery request, to
12
produce a Non-Party’s confidential information in its possession, and the Party is
13
subject to an agreement with the Non-Party not to produce the Non-Party’s
14
confidential information, then the Party shall:
15
(1) promptly notify in writing the Requesting Party and the Non-Party
16
that some or all of the information requested is subject to a confidentiality
17
agreement with a Non-Party;
18
(2) promptly provide the Non-Party with a copy of the Stipulated
19
Protective Order in this Action, the relevant discovery request(s), and a reasonably
20
specific description of the information requested; and
21
(3) make the information requested available for inspection by the
22
Non-Party, if requested.
23
(c) If the Non-Party fails to seek a protective order from this court within
24
14 days of receiving the notice and accompanying information, the Receiving Party
25
may produce the Non-Party’s confidential information responsive to the discovery
26
request. If the Non-Party timely seeks a protective order, the Receiving Party shall
27
confidentiality agreement with the Non-Party before a determination by the court.
1
Absent a court order to the contrary, the Non-Party shall bear the burden and
2
expense of seeking protection in this court of its Protected Material.
3
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
4
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
5
Protected Material to any person or in any circumstance not authorized under this
6
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
7
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
8
to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
9
persons to whom unauthorized disclosures were made of all the terms of this Order,
10
and (d) request such person or persons to execute the “Acknowledgment and
11
Agreement to Be Bound” that is attached hereto as Exhibit A.
12
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
13
PROTECTED MATERIAL
14
When a Producing Party gives notice to Receiving Parties that certain
15
inadvertently produced material is subject to a claim of privilege or other protection,
16
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
17
Procedure 26(b)(5)(B). This provision is not intended to modify whatever
18
procedure may be established in an e-discovery order that provides for production
19
without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
20
(e), insofar as the parties reach an agreement on the effect of disclosure of a
21
communication or information covered by the attorney-client privilege or work
22
product protection, the parties may incorporate their agreement in the stipulated
23
protective order submitted to the court.
24
12. MISCELLANEOUS
25
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
26
person to seek its modification by the Court in the future.
27
12.2 Right to Assert Other Objections. By stipulating to the entry of this
1
Protective Order, no Party waives any right it otherwise would have to object to
2
disclosing or producing any information or item on any ground not addressed in this
3
Stipulated Protective Order. Similarly, no Party waives any right to object on any
4
ground to use in evidence of any of the material covered by this Protective Order.
5
12.3 Filing Protected Material. A Party that seeks to file under seal any
6
Protected Material must comply with Local Civil Rule 79-5. Protected Material
7
may only be filed under seal pursuant to a court order authorizing the sealing of the
8
specific Protected Material at issue. If a Party’s request to file Protected Material
9
under seal is denied by the court, then the Receiving Party may file the information
10
in the public record unless otherwise instructed by the court.
11
13. FINAL DISPOSITION
12
After the final disposition of this Action, as defined in paragraph 4, within 60
13
days of a written request by the Designating Party, each Receiving Party must return
14
all Protected Material to the Producing Party or destroy such material. As used in
15
this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
16
summaries, and any other format reproducing or capturing any of the Protected
17
Material. Whether the Protected Material is returned or destroyed, the Receiving
18
Party must submit a written certification to the Producing Party (and, if not the same
19
person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
20
(by category, where appropriate) all the Protected Material that was returned or
21
destroyed and (2) affirms that the Receiving Party has not retained any copies,
22
abstracts, compilations, summaries or any other format reproducing or capturing any
23
of the Protected Material. Notwithstanding this provision, Counsel are entitled to
24
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
25
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
26
reports, attorney work product, and consultant and expert work product, even if such
27
constitute Protected Material remain subject to this Protective Order as set forth in
5 Section 4 (DURATION).
3 14. VIOLATION
4 Any violation of this Order may be punished by appropriate measures including,
5 without limitation, contempt proceedings and/or monetary sanctions.
‘ IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
7
DATED 8/16/2021
9
/s/ V. James DeSimone
10 Attorneys for Plaintiff
11
12
3 DATED: 8/12/2021
14
/s/ Geoffrey Plowden
15 Attorneys for Defendant
16
17
18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
19
50 DATED: September 23,2021 >
21
22
23
HON. GAIL J. STANDISH
24 || United States Magistrate Judge
25
26
27
28
EXHIBIT A
1
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
2
3
I, _____________________________ [print or type full name], of
4
_________________ [print or type full address], declare under penalty of perjury
5
that I have read in its entirety and understand the Stipulated Protective Order that
6
was issued by the United States District Court for the Central District of California
7
on [date] in the case of ___________ [insert formal name of the case and the
8
number and initials assigned to it by the court]. I agree to comply with and to be
9
bound by all the terms of this Stipulated Protective Order and I understand and
10
acknowledge that failure to so comply could expose me to sanctions and punishment
11
in the nature of contempt. I solemnly promise that I will not disclose in any manner
12
any information or item that is subject to this Stipulated Protective Order to any
13
person or entity except in strict compliance with the provisions of this Order.
14
I further agree to submit to the jurisdiction of the United States District Court for the
15
Central District of California for enforcing the terms of this Stipulated Protective
16
Order, even if such enforcement proceedings occur after termination of this action.
17
I hereby appoint __________________________ [print or type full name] of
18
_______________________________________ [print or type full address and
19
telephone number] as my California agent for service of process in connection with
20
this action or any proceedings related to enforcement of this Stipulated Protective
21
Order.
22
Date: ______________________________________
23
City and State where sworn and signed: _________________________________
24
25
Printed name: _______________________________
26
27