distinguishing “good cause” showing for sealing documents produced in 23 discovery from “compelling reasons” standard when merits-related documents are 24 part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing documents produced in 23 discovery from “compelling reasons” standard when merits-related documents are 24 part of court record
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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10 Lee Sprewell
, Case No.CV 20-11612 SVW (MRWx)
11 Plaintiff,
12 V. STIPULATED PROTECTIVE
ORDER
Federal Express Corporation et al (MRW VERSION 4/19)
14 Defendant.
15 L] Check if submitted without
material modifications to MRW form
16
17
ig || 1. INTRODUCTION
19 1.1 PURPOSES AND LIMITATIONS
0 Discovery in this action is likely to involve production of confidential,
51 || Proprietary, or private information for which special protection from public
57 || disclosure and from use for any purpose other than prosecuting this litigation may
33 || be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
54 || enter the following Stipulated Protective Order. The parties acknowledge that this
45 || Order does not confer blanket protections on all disclosures or responses to
26 || discovery and that the protection it affords from public disclosure and use extends
97 || only to the limited information or items that are entitled to confidential treatment
3g || under the applicable legal principles. The parties further acknowledge, as set forth
1 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
2 file confidential information under seal; Civil Local Rule 79-5 sets forth the
3 procedures that must be followed and the standards that will be applied when a party
4 seeks permission from the court to file material under seal.
5 1.2 GOOD CAUSE STATEMENT
6 [The parties must provide a statement establishing good cause for the entry of
7 this pretrial protective order. C.f. Oliner v. Kontrabecki, 745 F.3d 1024, 1026
8 (9th Cir. 2014). The parties’ statement must be specific to the facts and issues
9 of this case, including the nature of the action, the type of anticipated discovery,
10 and the potential resulting harm should relevant materials be disclosed
11 publicly. The parties are advised not to rely on boilerplate assertions regarding
12 good cause]
13
14 2. DEFINITIONS
15 2.1 Action: [this pending federal law suit]. [*Option: consolidated or
16 related actions.]
17 2.2 Challenging Party: a Party or Non-Party that challenges the
18 designation of information or items under this Order.
19 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
20 how it is generated, stored or maintained) or tangible things that qualify for
21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
22 the Good Cause Statement. [Note: any request for a two-tiered, attorney-eyes-
23 only protective order that designates certain material as “Highly Confidential”
24 will require a separate and detailed showing of need.]
25 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
26 their support staff).
27
1 2.5 Designating Party: a Party or Non-Party that designates information or
2 items that it produces in disclosures or in responses to discovery as
3 “CONFIDENTIAL.”
4 2.6 Disclosure or Discovery Material: all items or information, regardless
5 of the medium or manner in which it is generated, stored, or maintained (including,
6 among other things, testimony, transcripts, and tangible things), that are produced or
7 generated in disclosures or responses to discovery in this matter.
8 2.7 Expert: a person with specialized knowledge or experience in a matter
9 pertinent to the litigation who has been retained by a Party or its counsel to serve as
10 an expert witness or as a consultant in this Action.
11 2.8 House Counsel: attorneys who are employees of a party to this Action.
12 House Counsel does not include Outside Counsel of Record or any other outside
13 counsel.
14 2.9 Non-Party: any natural person, partnership, corporation, association, or
15 other legal entity not named as a Party to this action.
16 2.10 Outside Counsel of Record: attorneys who are not employees of a
17 party to this Action but are retained to represent or advise a party to this Action and
18 have appeared in this Action on behalf of that party or are affiliated with a law firm
19 which has appeared on behalf of that party, and includes support staff.
20 2.11 Party: any party to this Action, including all of its officers, directors,
21 employees, consultants, retained experts, and Outside Counsel of Record (and their
22 support staffs).
23 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
24 Discovery Material in this Action.
25 2.13 Professional Vendors: persons or entities that provide litigation
26 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
27 demonstrations, and organizing, storing, or retrieving data in any form or medium)
1 2.14 Protected Material: any Disclosure or Discovery Material that is
2 designated as “CONFIDENTIAL.”
3 2.15 Receiving Party: a Party that receives Disclosure or Discovery
4 Material from a Producing Party.
5
6 3. SCOPE
7 The protections conferred by this Stipulation and Order cover not only
8 Protected Material (as defined above), but also (1) any information copied or
9 extracted from Protected Material; (2) all copies, excerpts, summaries, or
10 compilations of Protected Material; and (3) any testimony, conversations, or
11 presentations by Parties or their Counsel that might reveal Protected Material.
12 Any use of Protected Material at trial will be governed by the orders of the
13 trial judge. This Order does not govern the use of Protected Material at trial.
14
15 4. DURATION
16 [POSSIBLE PARAGRAPH] Once a case proceeds to trial, all of the
17 information that was designated as confidential or maintained pursuant to this
18 protective order becomes public and will be presumptively available to all members
19 of the public, including the press, unless compelling reasons supported by specific
20 factual findings to proceed otherwise are made to the trial judge in advance of the
21 trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th
22 Cir. 2006) (distinguishing “good cause” showing for sealing documents produced in
23 discovery from “compelling reasons” standard when merits-related documents are
24 part of court record). Accordingly, the terms of this protective order do not extend
25 beyond the commencement of the trial.
26
27 [ALTERNATIVE POSSIBLE PARAGRAPH] Even after final disposition
1 effect until a Designating Party agrees otherwise in writing or a court order
2 otherwise directs. Final disposition will be deemed to be the later of (1) dismissal of
3 all claims and defenses in this Action, with or without prejudice; and (2) final
4 judgment herein after the completion and exhaustion of all appeals, rehearings,
5 remands, trials, or reviews of this Action, including the time limits for filing any
6 motions or applications for extension of time pursuant to applicable law.
7
8 5. DESIGNATING PROTECTED MATERIAL
9 5.1 Exercise of Restraint and Care in Designating Material for Protection.
10 Each Party or Non-Party that designates information or items for protection under
11 this Order must take care to limit any such designation to specific material that
12 qualifies under the appropriate standards. The Designating Party must designate for
13 protection only those parts of material, documents, items, or oral or written
14 communications that qualify so that other portions of the material, documents,
15 items, or communications for which protection is not warranted are not swept
16 unjustifiably within the ambit of this Order.
17 Mass, indiscriminate, or routinized designations are prohibited. Designations
18 that are shown to be clearly unjustified or that have been made for an improper
19 purpose (e.g., to unnecessarily encumber the case development process or to impose
20 unnecessary expenses and burdens on other parties) may expose the Designating
21 Party to sanctions.
22 If it comes to a Designating Party’s attention that information or items that it
23 designated for protection do not qualify for protection, that Designating Party must
24 promptly notify all other Parties that it is withdrawing the inapplicable designation.
25 5.2 Manner and Timing of Designations. Except as otherwise provided in
26 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
27 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
1 under this Order must be clearly so designated before the material is disclosed or
2 produced.
3 Designation in conformity with this Order requires:
4 (a) for information in documentary form (e.g., paper or electronic documents,
5 but excluding transcripts of depositions or other pretrial or trial proceedings), that
6 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
7 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
8 portion or portions of the material on a page qualifies for protection, the Producing
9 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
10 markings in the margins).
11 A Party or Non-Party that makes original documents available for
12 inspection need not designate them for protection until after the inspecting Party has
13 indicated which documents it would like copied and produced. During the
14 inspection and before the designation, all of the material made available for
15 inspection will be deemed “CONFIDENTIAL.” After the inspecting Party has
16 identified the documents it wants copied and produced, the Producing Party must
17 determine which documents, or portions thereof, qualify for protection under this
18 Order. Then, before producing the specified documents, the Producing Party must
19 affix the “CONFIDENTIAL legend” to each page that contains Protected Material.
20 If only a portion or portions of the material on a page qualifies for protection, the
21 Producing Party also must clearly identify the protected portion(s) (e.g., by making
22 appropriate markings in the margins).
23 (b) for testimony given in depositions that the Designating Party identify the
24 Disclosure or Discovery Material on the record, before the close of the deposition all
25 protected testimony.
26 (c) for information produced in some form other than documentary and for
27 any other tangible items, that the Producing Party affix in a prominent place on the
1 “CONFIDENTIAL.” If only a portion or portions of the information warrants
2 protection, the Producing Party, to the extent practicable, will identify the protected
3 portion(s).
4 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
5 failure to designate qualified information or items does not, standing alone, waive
6 the Designating Party’s right to secure protection under this Order for such material.
7 Upon timely correction of a designation, the Receiving Party must make reasonable
8 efforts to assure that the material is treated in accordance with the provisions of this
9 Order.
10
11 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
12 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
13 designation of confidentiality at any time that is consistent with the Court’s
14 Scheduling Order.
15 6.2 Meet and Confer. The Challenging Party will initiate the dispute
16 resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1
17 et seq.
18 6.3 The burden of persuasion in any such challenge proceeding will be on
19 the Designating Party. Frivolous challenges, and those made for an improper
20 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
21 parties) may expose the Challenging Party to sanctions. Unless the Designating
22 Party has waived or withdrawn the confidentiality designation, all parties will
23 continue to afford the material in question the level of protection to which it is
24 entitled under the Producing Party’s designation until the Court rules on the
25 challenge.
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1 7. ACCESS TO AND USE OF PROTECTED MATERIAL
2 7.1 Basic Principles. A Receiving Party may use Protected Material that is
3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a
7 Receiving Party must comply with the provisions of section 13 below (FINAL
8 DISPOSITION).
9 Protected Material must be stored and maintained by a Receiving Party at a
10 location and in a secure manner that ensures that access is limited to the persons
11 authorized under this Order.
12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
13 otherwise ordered by the court or permitted in writing by the Designating Party, a
14 Receiving Party may disclose any information or item designated
15 “CONFIDENTIAL” only to:
16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
17 well as employees of said Outside Counsel of Record to whom it is reasonably
18 necessary to disclose the information for this Action;
19 (b) the officers, directors, and employees (including House Counsel) of
20 the Receiving Party to whom disclosure is reasonably necessary for this Action;
21 (c) Experts (as defined in this Order) of the Receiving Party to whom
22 disclosure is reasonably necessary for this Action and who have signed the
23 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
24 (d) the Court and its personnel;
25 (e) court reporters and their staff;
26 (f) professional jury or trial consultants, mock jurors, and Professional
27 Vendors to whom disclosure is reasonably necessary for this Action and who have
1 (g) the author or recipient of a document containing the information or a
2 custodian or other person who otherwise possessed or knew the information;
3 (h) during their depositions, witnesses ,and attorneys for witnesses, in the
4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
5 requests that the witness sign the form attached as Exhibit A hereto; and (2) they
6 will not be permitted to keep any confidential information unless they sign the
7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
8 agreed by the Designating Party or ordered by the court. Pages of transcribed
9 deposition testimony or exhibits to depositions that reveal Protected Material may
10 be separately bound by the court reporter and may not be disclosed to anyone except
11 as permitted under this Stipulated Protective Order; and
12 (i) any mediator or settlement officer, and their supporting personnel,
13 mutually agreed upon by any of the parties engaged in settlement discussions.
14
15 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
16 IN OTHER LITIGATION
17 If a Party is served with a subpoena or a court order issued in other litigation
18 that compels disclosure of any information or items designated in this Action as
19 “CONFIDENTIAL,” that Party must:
20 (a) promptly notify in writing the Designating Party. Such notification
21 will include a copy of the subpoena or court order;
22 (b) promptly notify in writing the party who caused the subpoena or order
23 to issue in the other litigation that some or all of the material covered by the
24 subpoena or order is subject to this Protective Order. Such notification will include
25 a copy of this Stipulated Protective Order; and
26 (c) cooperate with respect to all reasonable procedures sought to be
27 pursued by the Designating Party whose Protected Material may be affected.
1 If the Designating Party timely seeks a protective order, the Party served with
2 the subpoena or court order will not produce any information designated in this
3 action as “CONFIDENTIAL” before a determination by the court from which the
4 subpoena or order issued, unless the Party has obtained the Designating Party’s
5 permission. The Designating Party will bear the burden and expense of seeking
6 protection in that court of its confidential material and nothing in these provisions
7 should be construed as authorizing or encouraging a Receiving Party in this Action
8 to disobey a lawful directive from another court.
9
10 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
11 PRODUCED IN THIS LITIGATION
12 (a) The terms of this Order are applicable to information produced by a
13 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
14 produced by Non-Parties in connection with this litigation is protected by the
15 remedies and relief provided by this Order. Nothing in these provisions should be
16 construed as prohibiting a Non-Party from seeking additional protections.
17 (b) In the event that a Party is required, by a valid discovery request, to
18 produce a Non-Party’s confidential information in its possession, and the Party is
19 subject to an agreement with the Non-Party not to produce the Non-Party’s
20 confidential information, then the Party will:
21 (1) promptly notify in writing the Requesting Party and the Non-Party
22 that some or all of the information requested is subject to a confidentiality
23 agreement with a Non-Party;
24 (2) promptly provide the Non-Party with a copy of the Stipulated
25 Protective Order in this Action, the relevant discovery request(s), and a reasonably
26 specific description of the information requested; and
27 (3) make the information requested available for inspection by the
1 (c) If the Non-Party fails to seek a protective order from this court within
2 14 days of receiving the notice and accompanying information, the Receiving Party
3 may produce the Non-Party’s confidential information responsive to the discovery
4 request. If the Non-Party timely seeks a protective order, the Receiving Party will
5 not produce any information in its possession or control that is subject to the
6 confidentiality agreement with the Non-Party before a determination by the court.
7 Absent a court order to the contrary, the Non-Party will bear the burden and expense
8 of seeking protection in this court of its Protected Material.
9
10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
12 Protected Material to any person or in any circumstance not authorized under this
13 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
14 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
15 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
16 persons to whom unauthorized disclosures were made of all the terms of this Order,
17 and (d) request such person or persons to execute the “Acknowledgment and
18 Agreement to Be Bound” that is attached hereto as Exhibit A.
19
20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
21 PROTECTED MATERIAL
22 When a Producing Party gives notice to Receiving Parties that certain
23 inadvertently produced material is subject to a claim of privilege or other protection,
24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
26 procedure may be established in an e-discovery order that provides for production
27 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
1 communication or information covered by the attorney-client privilege or work
2 product protection, the parties may incorporate their agreement in the stipulated
3 protective order submitted to the court.
4
5 12. MISCELLANEOUS
6 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
7 person to seek its modification by the Court in the future.
8 12.2 Right to Assert Other Objections. By stipulating to the entry of this
9 Protective Order no Party waives any right it otherwise would have to object to
10 disclosing or producing any information or item on any ground not addressed in this
11 Stipulated Protective Order. Similarly, no Party waives any right to object on any
12 ground to use in evidence of any of the material covered by this Protective Order.
13 12.3 Filing Protected Material. A Party that seeks to file under seal any
14 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
15 only be filed under seal pursuant to a court order authorizing the sealing of the
16 specific Protected Material at issue. If a Party's request to file Protected Material
17 under seal is denied by the court, then the Receiving Party may file the information
18 in the public record unless otherwise instructed by the court.
19
20 13. FINAL DISPOSITION
21 After the final disposition of this Action, as defined in paragraph 4, within 60
22 days of a written request by the Designating Party, each Receiving Party must return
23 all Protected Material to the Producing Party or destroy such material. As used in
24 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
25 summaries, and any other format reproducing or capturing any of the Protected
26 Material. Whether the Protected Material is returned or destroyed, the Receiving
27 Party must submit a written certification to the Producing Party (and, if not the same
1 || (by category, where appropriate) all the Protected Material that was returned or
2 || destroyed and (2) affirms that the Receiving Party has not retained any copies,
3 || abstracts, compilations, summaries or any other format reproducing or capturing any
4 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to
5 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
6 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
7 || reports, attorney work product, and consultant and expert work product, even if such
8 || materials contain Protected Material. Any such archival copies that contain or
9 |} constitute Protected Material remain subject to this Protective Order as set forth in
10 || Section (DURATION).
11
12 || 14. Any willful violation of this Order may be punished by civil or criminal
13 || contempt proceedings, financial or evidentiary sanctions, reference to disciplinary
14 || authorities, or other appropriate action at the discretion of the Court.
15
16 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.
17
18 || DATED: December 13, 2021 /s/Sarah McCracken
19 Attorneys for Plaintiff
20 |} DATED: December 13, 2021 /s/ David S. Wilson, III
5 Attorneys for Defendant
22
23 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
24
25 || DATED: December 15, 2021 fe UiL—
26 United States Magistrate judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [full name], of _________________
5 [full address], declare under penalty of perjury that I have read in its entirety and
6 understand the Stipulated Protective Order that was issued by the United States
7 District Court for the Central District of California on [date] in the case of
8 ___________ [insert case name and number]. 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
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 with
20 this action or any proceedings related to enforcement of this Stipulated Protective
21 Order.
22 Date: ______________________________________
23 City and State where signed: _________________________________
24
25 Printed name: _______________________________
26
27 Signature: __________________________________