even stipulated 10 protective orders require good cause showing
How later courts described this case
- even stipulated 10 protective orders 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 GARRY AGOSTO, an individual ) Case No. 2:21-cv-08305-MWF-JDE
and as JUNE LOVE AGOSTO’S ) STIPULATED PRTOECTIVE
11
successor in interes, ) ORDER
12 )
Plaintiff, )
13 )
VS. )
14
)
15 COUNTY OF LOS ANGELES, A )
PUBLIC ENTITY; and DOES 1 )
16 through 50, inclusive, )
)
17
Defendants. )
18
Pursuant to the parties’ Stipulation (Dkt. 12) and for good cause shown,
19
the Court finds and orders as follows.
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1. 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 pursuing this litigation may
24
25 be warranted. Accordingly, the parties hereby stipulate to and petition the
26 Court to enter the following Stipulated Protective Order. The parties
27 acknowledge that this Order does not confer blanket protections on all
28 disclosures or responses to discovery and that the protection it affords from
1 public disclosure and use extends only to the limited information or items that
2 are entitled to confidential treatment under the applicable legal principles.
3 2. GOOD CAUSE STATEMENT
4 This action is likely to involve juvenile records, private and personal
5 information, homicide files, medical records, and other such sensitive and
6 private information for which special protection from public disclosure and
7
from use for any purpose other than prosecution of this action is warranted.
8
Such confidential materials and information consist of, among other things,
9
medical records, juvenile files, investigation files, including information
10
implicating privacy rights of third parties, information otherwise generally
11
unavailable to the public, or which may be privileged or otherwise protected
12
from disclosure under state or federal statutes, court rules, case decisions, or
13
common law. Accordingly, to expedite the flow of information, to facilitate the
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prompt resolution of disputes over confidentiality of discovery materials, to
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adequately protect information the parties are entitled to keep confidential, to
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ensure that the parties are permitted reasonable necessary uses of such material
17
in preparation for and in the conduct of trial, to address their handling at the
18
end of the litigation, and serve the ends of justice, a protective order for such
19
information is justified in this matter. It is the intent of the parties that
20
21 information will not be designated as confidential for tactical reasons and that
22 nothing be so designated without a good faith belief that it has been
23 maintained in a confidential, non-public manner, and there is good cause why
24 it should not be part of the public record of this case.
25 3. ACKNOWLEDGMENT OF UNDER SEAL FILING
26 PROCEDURE
27 The parties further acknowledge, as set forth in Section 14.3, below, that
28 this Stipulated Protective Order does not entitle them to file confidential
1 information under seal; Local Civil Rule 79-5 sets forth the procedures that
2 must be followed and the standards that will be applied when a party seeks
3 permission from the court to file material under seal. There is a strong
4 presumption that the public has a right of access to judicial proceedings and
5 records in civil cases. In connection with non-dispositive motions, good cause
6 must be shown to support a filing under seal. See Kamakana v. City and
7
County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
8
Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
9
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
10
protective orders require good cause showing), and a specific showing of good
11
cause or compelling reasons with proper evidentiary support and legal
12
justification, must be made with respect to Protected Material that a party
13
seeks to file under seal. The parties’ mere designation of Disclosure or
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Discovery Material as CONFIDENTIAL does not— without the submission
15
of competent evidence by declaration, establishing that the material sought to
16
be filed under seal qualifies as confidential, privileged, or otherwise
17
protectable—constitute good cause.
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Further, if a party requests sealing related to a dispositive motion or trial,
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then compelling reasons, not only good cause, for the sealing must be shown,
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21 and the relief sought shall be narrowly tailored to serve the specific interest to
22 be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th
23 Cir. 2010). For each item or type of information, document, or thing sought to
24 be filed or introduced under seal, the party seeking protection must articulate
25 compelling reasons, supported by specific facts and legal justification, for the
26 requested sealing order. Again, competent evidence supporting the application
27 to file documents under seal must be provided by declaration.
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1 Any document that is not confidential, privileged, or otherwise
2 protectable in its entirety will not be filed under seal if the confidential portions
3 can be redacted. If documents can be redacted, then a redacted version for
4 public viewing, omitting only the confidential, privileged, or otherwise
5 protectable portions of the document, shall be filed. Any application that seeks
6 to file documents under seal in their entirety should include an explanation of
7
why redaction is not feasible.
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4. DEFINITIONS
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4.1 Action: Garry Agosto v. County of Los Angeles, Case No. 2:21-cv-
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08305-MWF-JDE
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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
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(regardless of how it is generated, stored or maintained) or tangible things that
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qualify for protection under Federal Rule of Civil Procedure 26(c), and as
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specified above in the Good Cause Statement.
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4.4 Counsel: Outside Counsel of Record and House Counsel (as well
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as their support staff).
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20 4.5 Designating Party: a Party or Non-Party that designates
21 information or items that it produces in disclosures or in responses to discovery
22 as “CONFIDENTIAL.”
23 4.6 Disclosure or Discovery Material: all items or information,
24 regardless of the medium or manner in which it is generated, stored, or
25 maintained (including, among other things, testimony, transcripts, and tangible
26 things), that are produced or generated in disclosures or responses to discovery.
27 4.7 Expert: a person with specialized knowledge or experience in a
28 matter pertinent to the litigation who has been retained by a Party or its
1 counsel to serve as an expert witness or as a consultant in this Action.
2 4.8 House Counsel: attorneys who are employees of a party to this
3 Action. House Counsel does not include Outside Counsel of Record or any
4 other outside counsel.
5 4.9 Non-Party: any natural person, partnership, corporation,
6 association or 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
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have appeared in this Action on behalf of that party or are affiliated with a law
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firm that 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,
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directors, employees, consultants, retained experts, and Outside Counsel of
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Record (and their support staffs).
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4.12 Producing Party: a Party or Non-Party that produces Disclosure or
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Discovery Material in this Action.
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4.13 Professional Vendors: persons or entities that provide litigation
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support services (e.g., photocopying, videotaping, translating, preparing
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exhibits or demonstrations, and organizing, storing, or retrieving data in any
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form or medium) and their employees and subcontractors.
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21 4.14 Protected Material: any Disclosure or Discovery Material that is
22 designated as “CONFIDENTIAL.”
23 4.15 Receiving Party: a Party that receives Disclosure or Discovery
24 Material from a Producing Party.
25 5. SCOPE
26 The protections conferred by this Stipulation and Order cover not only
27 Protected Material (as defined above), but also (1) any information copied or
28 extracted from Protected Material; (2) all copies, excerpts, summaries, or
1 compilations of Protected Material; and (3) any testimony, conversations, or
2 presentations by Parties or their Counsel that might reveal Protected Material.
3 Any use of Protected Material at trial shall be governed by the orders of
4 the trial judge and other applicable authorities. This Order does not govern the
5 use of Protected Material at trial.
6 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 protective order used or
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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
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the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
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(distinguishing “good cause” showing for sealing documents produced in
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discovery from “compelling reasons” standard when merits-related documents
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are part of court record). Accordingly, the terms of this protective order do not
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extend beyond the commencement of the trial.
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7. DESIGNATING PROTECTED MATERIAL
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7.1 Exercise of Restraint and Care in Designating Material for
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Protection. Each Party or Non-Party that designates information
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21 or items for protection under this Order must take care to limit any such
22 designation to specific material that qualifies under the appropriate standards.
23 The Designating Party must designate for protection only those parts of
24 material, documents, items or oral or written communications that qualify so
25 that other portions of the material, documents, items or communications for
26 which protection is not warranted are not swept unjustifiably within the ambit
27 of this Order.
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1 Mass, indiscriminate or routinized designations are prohibited.
2 Designations that are shown to be clearly unjustified or that have been made
3 for an improper purpose (e.g., to unnecessarily encumber the case development
4 process or to impose unnecessary expenses and burdens on other parties) may
5 expose the Designating Party to sanctions.
6 If it comes to a Designating Party’s attention that information or items
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that it designated for protection do not qualify for protection, that Designating
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Party must promptly notify all other Parties that it is withdrawing the
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inapplicable designation.
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7.2 Manner and Timing of Designations. Except as otherwise
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provided in this Order, or as otherwise stipulated or ordered, Disclosure of
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Discovery Material that qualifies for protection under this Order must be
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clearly so designated before 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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proceedings), that the Producing Party affix at a minimum, the legend
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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page
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that contains protected material. If only a portion of the material on a page
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21 qualifies for protection, the Producing Party also must clearly identify the
22 protected portion(s) (e.g., by making appropriate markings in the margins).
23 A Party or Non-Party that makes original documents available for
24 inspection need not designate them for protection until after the inspecting
25 Party has indicated which documents it would like copied and produced.
26 During the inspection and before the designation, all of the material made
27 available for inspection shall be deemed “CONFIDENTIAL.” After the
28 inspecting Party has identified the documents it wants copied and produced,
1 the Producing Party must determine which documents, or portions thereof,
2 qualify for protection under this Order. Then, before producing the specified
3 documents, the Producing Party must affix the “CONFIDENTIAL legend” to
4 each page that contains Protected Material. If only a portion of the material on
5 a page qualifies for protection, the Producing Party also must clearly identify
6 the protected portion(s) (e.g., by making appropriate markings in the margins).
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(b) for testimony given in depositions that the Designating Party
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identifies the Disclosure or Discovery Material on the record, before the close
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of the deposition all protected testimony.
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(c) for information produced in some form other than
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documentary and for any other tangible items, that the Producing Party affix
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in a prominent place on the exterior of the container or containers in which the
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information is stored the legend “CONFIDENTIAL.” If only a portion or
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portions of the information warrants protection, the Producing Party, to the
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extent practicable, shall identify the protected portion(s).
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7.3 Inadvertent Failures to Designate. If timely corrected, an
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inadvertent failure to designate qualified information or items does not,
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standing alone, waive the Designating Party’s right to secure protection under
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this Order for such material. Upon timely correction of a designation, the
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21 Receiving Party must make reasonable efforts to assure that the material is
22 treated in accordance with the provisions of this Order.
23 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
24 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
25 designation of confidentiality at any time that is consistent with the Court’s
26 Scheduling Order.
27 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
28 resolution process under Local Rule 37-1 et seq.
1 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
2 joint stipulation pursuant to Local Rule 37-2.
3 8.4 The burden of persuasion in any such challenge proceeding shall be
4 on the Designating Party. Frivolous challenges, and those made for an
5 improper purpose (e.g., to harass or impose unnecessary expenses and burdens
6 on other parties) may expose the Challenging Party to sanctions. Unless the
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Designating Party has waived or withdrawn the confidentiality designation, all
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parties shall continue to afford the material in question the level of protection
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to which it is entitled under the Producing Party’s designation until the Court
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rules on the challenge.
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12 9. ACCESS TO AND USE OF PROTECTED MATERIAL
13 9.1 Basic Principles. A Receiving Party may use Protected Material that
14 is disclosed or produced by another Party or by a Non-Party in connection
15 with this Action only for prosecuting, defending or attempting to settle this
16 Action. Such Protected Material may be disclosed only to the categories of
17 persons and under the conditions described in this Order. When the Action has
18 been terminated, a Receiving Party must comply with the provisions of section
19 15 below (FINAL DISPOSITION).
20 Protected Material must be stored and maintained by a Receiving Party
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at a location and in a secure manner that ensures that access is limited to the
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persons 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
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Party, a Receiving Party may disclose any information or item designated
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“CONFIDENTIAL” only to:
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1 (a) the Receiving Party’s Outside Counsel of Record in this
2 Action, as well as employees of said Outside Counsel of Record to whom it is
3 reasonably necessary to disclose the information for this Action;
4 (b) the officers, directors, and employees (including House
5 Counsel) of the Receiving Party to whom disclosure is reasonably necessary
6 for this Action;
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(c) Experts (as defined in this Order) of the Receiving Party to
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whom disclosure is reasonably necessary for this Action and who have signed
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the “Acknowledgment and Agreement to Be Bound”
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(d) the court and its personnel;
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(e) court reporters and their staff;
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(f) professional jury or trial consultants, mock jurors, and
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Professional Vendors to whom disclosure is reasonably necessary for this
14
Action and who have signed the Acknowledgment and Agreement to Be
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Bound;
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(g) the author or recipient of a document containing the
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information or a custodian or other person who otherwise possessed or knew
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the information;
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(h) during their depositions, witnesses, and attorneys for witnesses,
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21 in the Action to whom disclosure is reasonably necessary provided: (1) the
22 deposing party requests that the witness sign the Acknowledgment and
23 Agreement to Be Bound; and (2) they will not be permitted to keep any
24 confidential information unless they sign the Acknowledgment and Agreement
25 to Be Bound unless otherwise agreed by the Designating Party or ordered by
26 the court. Pages of transcribed deposition testimony or exhibits to depositions
27 that reveal Protected Material may be separately bound by the court reporter
28 and may not be disclosed to anyone except as permitted under this Order; and
1 (i) any mediators or settlement officers and their supporting
2 personnel, mutually agreed upon by any of the parties engaged in settlement
3 discussions.
4 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
5 PRODUCED IN OTHER LITIGATION
6 If a Party is served with a subpoena or a court order issued in other
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litigation that compels disclosure of any information or items designated in this
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Action as “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
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or order to issue in the other litigation that some or all of the material covered
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by the subpoena or order is subject to this Order. Such notification shall
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include a copy of this Order; and
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(c) cooperate with respect to all reasonable procedures sought to be
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pursued by the Designating Party whose Protected Material may be affected. If
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the Designating Party timely seeks a protective order, the Party served with the
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subpoena or court order shall not produce any information designated in this
19
action as “CONFIDENTIAL” before a determination by the court from which
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21 the subpoena or order issued, unless the Party has obtained the Designating
22 Party’s permission. The Designating Party shall bear the burden and expense
23 of seeking protection in that court of its confidential material and nothing in
24 these provisions should be construed as authorizing or encouraging a
25 Receiving Party in this Action to disobey a lawful directive from another court.
26 / / /
27 / / /
28 / / /
1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
BE PRODUCED IN THIS LITIGATION
2
3 (a) The terms of this Order are applicable to information produced
4 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
5 information produced by Non-Parties in connection with this litigation is
6 protected by the remedies and relief provided by this Order. Nothing in these
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provisions should be construed as prohibiting a Non-Party from seeking
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additional protections.
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(b) In the event that a Party is required, by a valid discovery
10
request, to produce a Non-Party’s confidential information in its possession,
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and the Party is subject to an agreement with the Non-Party not to produce the
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Non-Party’s confidential information, then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-
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Party that some or all of the information requested is subject to a
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confidentiality agreement with a Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this Action, the relevant discovery request(s), and a
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reasonably 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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21 Non-Party, if requested.
22 (c) If the Non-Party fails to seek a protective order from this court
23 within 14 days of receiving the notice and accompanying information, the
24 Receiving Party may produce the Non-Party’s confidential information
25 responsive to the discovery request. If the Non-Party timely seeks a protective
26 order, the Receiving Party shall not produce any information in its possession
27 or control that is subject to the confidentiality agreement with the Non-Party
28 before a determination by the court. Absent a court order to the contrary, the
1 Non-Party shall bear the burden and expense of seeking protection in this court
2 of its Protected Material.
3 12. UNAUTHORIZED DISCLOSURE OF PROTECTED
MATERIAL
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5 If a Receiving Party learns that, by inadvertence or otherwise, it has
6 disclosed Protected Material to any person or in any circumstance not
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authorized under this Stipulated Protective Order, the Receiving Party must
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immediately (a) notify in writing the Designating Party of the unauthorized
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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
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Protected Material, (c) inform the person or persons to whom unauthorized
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disclosures were made of all the terms of this Order, and (d) request such
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person or persons to execute the Acknowledgment an Agreement to Be Bound.
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13. INADVERTENT PRODUCTION OF PRIVILEGED OR
14 OTHERWISE PROTECTED MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain
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inadvertently produced material is subject to a claim of privilege or other
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protection, the obligations of the Receiving Parties are those set forth in
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Federal Rule of Civil\ Procedure 26(b)(5)(B). This provision is not intended to
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modify whatever procedure may be established in an e-discovery order that
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21 provides for production without prior privilege review. Pursuant to Federal
22 Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on
23 the effect of disclosure of a communication or information covered by the
24 attorney-client privilege or work product protection, the parties may
25 incorporate their agreement in the stipulated protective order submitted to the
26 court.
27 / / /
28 / / /
1 14. MISCELLANEOUS
2 14.1 Right to Further Relief. Nothing in this Order abridges the right of
3 any person to seek its modification by the Court in the future.
4 14.2 Right to Assert Other Objections. By stipulating to the entry of this
5 Protective Order, no Party waives any right it otherwise would have to object
6 to disclosing or producing any information or item on any ground not
7
addressed in this Stipulated Protective Order. Similarly, no Party waives any
8
right to object on any ground to use in evidence of any of the material covered
9
by this Protective Order.
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14.3 Filing Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Local Civil Rule 79-5. Protected
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Material may only be filed under seal pursuant to a court order authorizing the
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sealing of the specific Protected Material. If a Party’s request to file Protected
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Material under seal is denied by the court, then the Receiving Party may file
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the information in the public record unless otherwise instructed by the court.
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15. FINAL DISPOSITION
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After the final disposition of this Action, as defined in paragraph 6,
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within 60 days of a written request by the Designating Party, each Receiving
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Party must return all Protected Material to the Producing Party or destroy such
20
21 material. As used in this subdivision, “all Protected Material” includes all
22 copies, abstracts, compilations, summaries, and any other format reproducing
23 or capturing any of the Protected Material. Whether the Protected Material is
24 returned or destroyed, the Receiving Party must submit a written certification
25 to the Producing Party (and, if not the same person or entity, to the
26 Designating Party) by the 60-day deadline that (1) identifies (by category,
27 where appropriate) all the Protected Material that was returned or destroyed
28 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
1 !}compilations, summaries or any other format reproducing or capturing any of
2 ||the Protected Material. Notwithstanding this provision, Counsel are entitled to
3 retain an archival copy of all pleadings, motion papers, trial, deposition, and
4 || hearing transcripts, legal memoranda, correspondence, deposition and trial
> |] exhibits, expert reports, attorney work product, and consultant and expert
6 Il work product, even if such materials contain Protected Material. Any such
|| archival copies that contain or constitute Protected Material remain subject to
8 this Protective Order as set forth in Section 6 (DURATION).
° 16. VIOLATION
0 Any violation of this Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary
sanctions.
13
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15 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
16
17 || DATED: November 29, 2021
18
Lia Hl bG
20 JOHN D. EARLY
United States Magistrate Judge
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