distinguishing “good cause” 13 showing for sealing documents produced in discovery from “compelling reasons” 14 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 13 showing for sealing documents produced in discovery from “compelling reasons” 14 standard when merits-related documents are part of court record
- even stipulated protective orders require good 13 cause showing
Written by the judges who cited it.
The opinion
2
3
UNITED STATES DISTRICT COURT
4
5 CENTRAL DISTRICT OF CALIFORNIA
6
7
8 FELICIA CHERIE TAYLOR, an Case No. 19-cv-08123-ODW-RAO
individual,
9
10 Plaintiff,
STIPULATED PROTECTIVE
11
vs. ORDER1
12
13
RAUSCH, STURM, ISRAEL
14 ENERSON & HORNIK LLC, a
Wisconsin limited liability company;
15
CAMRYN P. BERK, an individual;
16 and DOES 1-10, inclusive
17
18
19
1. A. PURPOSES AND LIMITATIONS
20
Discovery in this action is likely to involve production of confidential,
21
proprietary or private information for which special protection from public disclosure
22
and from use for any purpose other than prosecuting this litigation may be warranted.
23
Accordingly, the parties hereby stipulate to and petition the Court to enter the
24
following Stipulated Protective Order. The parties acknowledge that his Order does
25
not confer blanket protections on all disclosures or responses to discovery and that the
26
27
1 This Stipulated Protective Order is substantially based on the model protective order provided under
28
Magistrate Judge Rozella A. Oliver’s Procedures
-1-
protection it affords from public disclosure and use extends only to the limited
2 information or items that are entitled to confidential treatment under the applicable
3 legal principles.
4
B. GOOD CAUSE STATEMENT
5
6 This action is likely to involve trade secrets, customer and pricing lists and
7 other valuable research, development, commercial, financial, technical and/or
8 proprietary information for which special protection from public disclosure and from
9 use for any purpose other than prosecution of this action is warranted. Such
10 confidential and proprietary materials and information consist of, among other things,
11 confidential business or financial information, information regarding confidential
12 business practices, or other confidential research, development, or commercial
13 information (including information implicating privacy rights of thirds parties),
14 information otherwise generally unavailable to the public, or which may be privileged
15 or otherwise protected from disclosure under state or federal statutes, court rules, case
16 decisions, or common law. Accordingly, to expedite the flow of information, to
17 facilitate the prompt resolution of disputes over confidentiality of discovery materials,
18 to adequately protect information the parties are entitled to keep confidential, to
19 ensure that the parties are permitted reasonable necessary uses of such material in
20 preparation for and in the conduct of trial, to address their handling at the end of the
21 litigation, and serve the ends of justice, a protective order for such information is
22 justified in this matter. It is the intent of the parties that information will not be
23 designated as confidential for tactical reasons and that nothing be so designated
24 without a good faith belief that it has been maintained in a confidential, non-public
25 manner, and there is good cause why it should not be part of the public record of this
26 case.
27
28
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C. ACKNOWLEDGMENT OF PROCEDURES FOR FILING UNDER SEAL
2 The parties further acknowledge, as set forth in Section 12.3, below, that his
3 Stipulated Protective Order does not entitle them to file confidential information
4 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
5 the standards that will be applied when a party seeks permission from the court to file
6 material under seal.
7 There is a strong presumption that the public has a right of access to judicial
8 proceedings and records in civil cases. In connection with non-dispositive motions,
9 good cause must be shown to support a filing under seal. See Kamakana v. City and
10 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
11 Corp. 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,
12 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
13 cause showing), and a specific showing of good cause or compelling reasons with
14 proper evidentiary support and legal justification, must be made with respect to
15 Protected Material that a party seeks to file under seal. The parties’ mere designation
16 of Disclosure or Discovery Material as CONFIDENTIAL does not—without the
17 submission of competent evidence by declaration, establishing that the material
18 sought to be filed under seal qualifies as confidential, privileged, or otherwise
19 protectable—constitute good cause.
20 Further, if a party request sealing related to a dispositive motion or trial, then
21 compelling reasons, not only good cause, for the sealing must be shown, and the
22 relief sought shall be narrowly tailored to serve the specific interest to be protected.
23 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each
24 item or type of information, document, or thing sought to be filed or introduced under
25 seal in connection with a dispositive motion or trial, the party seeking protection must
26 articulate compelling reasons, supported by specific facts and legal justification, for
27 the requested sealing order. Again, competent evidence supporting the application to
28
-3-
file documents under seal must be provided by declaration.
2 Any document that is not confidential, privileged, or otherwise protectable in
3 its entirety will not be filed under seal if the confidential portions can be redacted. If
4 documents can be redacted, then a redacted version for public viewing, omitting only
5 the confidential, privileged, or otherwise protectable portions of the document, shall
6 be filed. Any application that seeks to file documents under seal in their entirety
7 should include an explanation of why redaction is not feasible.
8 2. DEFINITIONS
9 2.1 Action: Farjo v. Synergetic Communications et al., United States
10 District Court, Case No. 20-cv-01753-PSG-AFM.
11 2.2 Challenging Party: A Party or Non-Party that challenges the designation
12 of information or items under this Order.
13 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
14 how it is generated, stored or maintained) or tangible things that qualify for protection
15 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
16 Cause Statement.
17 2.4 Counsel: Outside Counsel of Record and House Consel (as well as their
18 support staff).
19 2.5 Designating Party: a Party or Non-Party that designates information or
20 items that it produces in disclosures or in responses to discovery as
21 “CONFIDENTIAL.”
22 2.6 Disclosure or Discovery Material: all items or information, regardless of
23 the medium or manner in which it is generated, stored, or maintained (including,
24 among other things, testimony, transcripts, and tangible things), that are produced or
25 generated in disclosures or response to discovery in this matter.
26 2.7 Expert: a person with specialized knowledge or experience in a matter
27 pertinent to the litigation who has been retained by a Party or its counsel to serve as
28
-4-
an expert witness or as a consultant in this Action.
2 2.8 House Counsel: attorneys who are employees of a party to this Action.
3 House Counsel does not include Outside Counsel of Record or any other outside
4 counsel.
5 2.9 Non-Party: any natural person, partnership, corporation, association or
6 other legal entity not named as a Party to this action.
7 2.10 Outside Counsel of Records: attorneys who are not employees of a party
8 to this Action but are retained to represent or advise a party to this Action and have
9 appeared in this Action on behalf of that party or are affiliated with a law firm that
10 has appeared on behalf of that party, and includes support staff.
11 2.11 Party: any party to this Action, including all of its officers, directors,
12 employees, consultants, retained experts, and Outside Counsel of Record (and their
13 support staffs).
14 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
15 Discovery Material in this Action.
16 2.13 Professional Vendors: persons or entities that provide litigation support
17 services (e.g., photocopying, videotaping, translating, preparing exhibits or
18 demonstrations, and organizing, storing, or retrieving data in any form or medium)
19 and their employees and subcontractors.
20 2.14 Protected Material: any Disclosure or Discovery Material that is
21 designated as “CONFIDENTIAL.”
22 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
23 from a Producing Party.
24 3. SCOPE
25 The protections conferred by this Stipulation and Order cover not only
26 Protected Material (as defined above), but also (1) any information copied or
27 extracted from Protected Material; (2) all copies, excerpts, summaries, or
28
-5-
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 the
4 trial judge. This Order does not govern the use of Protected Material at trial.
5
6 4. DURATION
7 Once a case proceeds to trial, information that was designated as
8 CONFIDENTIAL or maintained pursuant to this protective order used or introduced
9 as an exhibit at trial becomes public and will be presumptively available to all
10 members of the public, including the press, unless compelling reasons supported by
11 specific factual findings to proceed otherwise are made to the trial judge in advance
12 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
13 showing for sealing documents produced in discovery from “compelling reasons”
14 standard when merits-related documents are part of court record). Accordingly, the
15 terms of this protective order do not extend beyond the commencement of the trial.
16 5. DESIGNATING PROTECTED MATERIAL
17 5.1 Exercise of Restraint and Care in Designating Material for Protection.
18 Each Party or Non-Party that designates information or items for protection
19 under this Order must take care to limit any such designation to specific material that
20 qualifies under the appropriate standards. The Designating Party must designate for
21 protection only those parts of material, documents, items or oral or written
22 communications that qualify so that other portions of the material, documents, items
23 or communications for which protection is not warranted are not swept unjustifiably
24 within the ambit of this Order.
25 Mass, indiscriminate or routinized designations are prohibited. Designations
26 that are shown to be clearly unjustified or that have been made for an improper
27 purpose (e.g., to unnecessarily encumber the case development process or to impose
28
-6-
unnecessary expenses and burdens on other parties) may expose the Designating
2 Party to sanctions.
3 If it comes to a Designating Party’s attention that information or items that it
4 designated for protection do not qualify for protection, that Designating Party must
5 promptly notify all other Parties that it is withdrawing the inapplicable designation.
6 5.2 Manner and Timing of Designations. Except as otherwise provided in
7 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
8 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
9 under this Order must be clearly so designated before the material is disclosed or
10 produced.
11 Designation in conformity with this Order requires:
12 (a) for information in documentary form (e.g., paper or electronic
13 documents, but excluding transcripts of depositions or other pretrial or trial
14 proceedings), that the Producing Party affix at a minimum, the legend
15 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
16 contains protected material. If only a portion of the material on a page qualifies for
17 protection, the Producing Party also must clearly identify the protected portion(s)
18 (e.g., by making appropriate markings in the margins).
19 A Party or Non-Party that makes original documents available for inspection
20 need not designate them for protection until after the inspecting Party has indicated
21 which documents it would like copied and produced. During the inspection and
22 before the designation, all of the material made available for inspection shall be
23 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
24 it wants copied and produced, the Producing Party must determine which documents,
25 or portions thereof, qualify for protection under this Order. Then, before producing
26 the specified documents, the Producing Party must affix the “CONFIDENTIAL
27 legend” to each page that contains Protected Material. If only a portion of the
28
-7-
material on a page qualifies for protection, the Producing Party also must clearly
2 identify the protected portion(s) (e.g., by making appropriate markings in the
3 margins).
4 (b) for testimony given in depositions that the Designating Party identifies
5 the Disclosure or Discovery Material on the record, before the close of the deposition
6 all protected testimony.
7 (c) for information produced in some form other than documentary and for
8 any other tangible items, that the Producing Party affix in a prominent place on the
9 exterior of the container or containers in which the information is stored the legend
10 “CONFIDENTIAL.” If only a portion or portions of the information warrants
11 protection, the Producing Party, to the extent practicable, shall identify the protected
12 portion(s).
13 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
14 failure to designate qualified information or items does not, standing alone, waive the
15 Designating Party’s right to secure protection under this Order for such material.
16 Upon timely correction of a designation, the Receiving Party must make reasonable
17 efforts to assure that the material treated in accordance with the provisions of this
18 Order.
19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
21 designation of confidentiality at any time that is consistent with the Court’s
22 Scheduling Order.
23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
24 resolution process under Local Rule 37.1 et seq.
25 6.3 The burden of persuasion in any such challenge proceeding shall be on
26 the Designating Party. Frivolous challenges, and those made for an improper
27 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
28
-8-
parties) may expose the Challenging Party to sanctions. Unless the Designating
2 Party has waived or withdrawn the confidentiality designation, all parties shall
3 continue to afford the material in question the level of protection to which it is
4 entitled under the Producing Party’s designation until the Court rules on the
5 challenge.
6 7. ACCESS TO AND USE OF PROTECTED MATERIAL
7 7.1 Basic Principles. A Receiving Party may use Protected Material that is
8 disclosed or produced by another Party or by a Non-Party in connection with this
9 Action only for prosecuting, defending or attempting to settle this Action. Such
10 Protected Material may be disclosed only to the categories of persons and under the
11 conditions described in this Order. When the Action has been terminated, a
12 Receiving Party must comply with the provisions of section 13 below (FINAL
13 DISPOSITION).
14 Protected Material must be stored an maintained by a Receiving Party at a
15 location and in a secure manner that ensures that access is limited to the persons
16 authorized under this Order.
17 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
18 otherwise ordered by the court or permitted in writing by the Designating Party, a
19 Receiving Party may disclose any information or item designated
20 “CONFIDENTIAL” only to:
21 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
22 well as employees of said Outside Counsel of Record to whom it is reasonably
23 necessary to disclose the information for this Action;
24 (b) the officers, directors, and employees (including House Counsel) of
25 the Receiving party to whom disclosure is reasonably necessary for this Action;
26 (c) Experts (as defined in this Order) of the Receiving Party to whom
27 disclosure is reasonably necessary for this Action and who have signed the
28
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
2 (d) the court and its personnel;
3 (e) court reporters and their staff;
4 (f) professional jury or trial consultants, mock jurors, and Professional
5 Vendors to who disclosure is reasonably necessary for this Action and who have
6 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
7 (g) the author or recipient of a document containing the information or a
8 custodian or other person who otherwise possessed or knew the information;
9 (h) during their depositions, witness, and attorneys for witnesses, in the
10 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
11 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
12 not be permitted to keep any confidential information unless they sign the
13 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
14 agreed by the Designating Party or ordered by the court. Pages of transcribed
15 deposition testimony or exhibits to depositions that reveal Protected Material may
16 be separately bound by the court reporter and may not be disclosed to anyone except
17 as permitted under this Stipulated Protective Order; and
18 (i) any mediator or settlement officer, and their supporting personnel,
19 mutually agreed upon by any of the parties engaged in settlement discussions.
20 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
21 IN OTHER LITIGATION.
22 If a Party is served with a subpoena or a court order issued in other litigation
23 that compels disclosure of any information or items designated in this Action as
24 “CONFIDENTIAL,” that Party must:
25 (a) promptly notify in writing the Designating Party. Such notification
26 shall include a copy of the subpoena or court order;
27 (b) promptly notify in writing the party who caused the subpoena or
28
-10-
order to issue in the other litigation that some or all of the material covered by the
2 subpoena or order is subject to this Protective Order. Such notification shall include a
3 copy of this Stipulated Protective Order; and
4 (c) cooperate with respect to all reasonable procedures sought to be
5 pursued by the Designating Party whose Protected Material may be affected.
6 If the Designating Party timely seeks a protective order, the Party served with
7 the subpoena or court order shall not produce any information designated in this
8 action as “CNFIDENTIAL” before a determination by the court from which the
9 subpoena or order issued, unless the Party has obtained the Designating Party’s
10 permission. The Designating Party shall bear the burden and expense of seeking
11 protection in that court of its confidential material and nothing in these provisions
12 should be construed as authorizing or encouraging a Receiving Party in this Action to
13 disobey a lawful directive from another court.
14 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
15 PRODUCED IN THIS LITIGATION
16 (a) The terms of this Order are applicable to information produced by a
17 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
18 produced by Non-Parties in connection with this litigation is protected by the
19 remedies and relief provided by this Order. Nothing in these provisions should be
20 construed as prohibiting a Non-Party from seeking additional protections.
21 (b) In the event that a Party is required, by a valid discovery request, to
22 produce a Non-Party’s confidential information in its possession, and the Party is
23 subject to an agreement with the Non-Party not to produce the Non-Party’s
24 confidential information, then the Party shall:
25 (1) promptly notify in writing the Requesting Party and the Non-Party
26 that some or all of the information requested is subject to a confidentiality agreement
27 with a Non-Party;
28
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(2) promptly provide the Non-Party with a copy of the Stipulated
2 Protective Order in this Action, the relevant discovery request(s), and a reasonably
3 specific description of the information requested; and
4 (3) make the information requested available for inspection by the
5 Non-Party, if requested.
6 (c) If the Non-Party fails to seek a protective order from this court within
7 14 days of receiving the notice and accompanying information, the Receiving Party
8 may produce the Non-Party’s confidential information responsive to the discovery
9 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
10 not produce any information in its possession or control that is subject to the
11 confidentiality agreement with the Non-Party before a determination by the court.
12 Absent a court order to the contrary, the Non-Party shall bear the burden and
13 expense of seeking protection in this court of its Protected Material.
14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
15 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
16 Protected Material to any person or in any circumstance not authorized under this
17 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
18 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
19 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
20 persons to whom unauthorized disclosures were made of all the terms of this Order,
21 and (d) request such person or persons to execute the “Acknowledgment and
22 Agreement to Be Bound” that is attached hereto as Exhibit A.
23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
24 PROTECTED MATERIAL
25 When a Producing Party gives notice to Receiving Parties that certain
26 inadvertently produced material is subject to a claim of privilege or other protection,
27 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
28
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Procedure 26(b)(5)(B). This provision is not intended to modify whatever
2 procedure may be established in an e-discovery order that provides for production
3 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
4 (e), insofar as the parties reach an agreement n the effect of disclosure of a
5 communication or information covered by the attorney-client privilege or work
6 product protection, the parties may incorporate their agreement in the stipulated
7 protective order submitted to the court.
8 12. MISCELLANEOUS
9 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
10 person to seek its modification by the Court in the future.
11 12.2 Right to Assert Other Objections. By stipulating to the entry of this
12 Protective Order, no Party waives any right it otherwise would have to object to
13 disclosing or producing any information or item on any ground not addressed in this
14 Stipulated Protective Order. Similarly, no Party waives any right to object on any
15 ground to use in evidence of any of the material covered by this Protective Order.
16 12.3 Filing Protected Material. A Party that seeks to file under seal any
17 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
18 only be filed under seal pursuant to a court order authorizing the sealing of the
19 specific Protected Material at issue. If a Party’s request to file Protected Material
20 under seal is denied by the court, then the Receiving Party may file the information in
21 the public record unless otherwise instructed by the court.
22 13. FINAL DISPOSITION
23 After the final disposition of this Action, as defined in paragraph 4, within 60
24 days of a written request by the Designating Party, each Receiving Party must return
25 all Protected Material to the Producing Party or destroy such material. As used in
26 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
27
28
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summaries, and any other format reproducing or capturing any of the Protected
2 Material. Whether the Protected Material is returned or destroyed, the Receiving
3 Party must submit a written certification to the Producing Party (and, if not the same
4 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
5 (by category, where appropriate) all the Protected Material that was returned or
6 destroyed and (2) affirms that the Receiving Party has not retained any copies,
7 abstracts, compilations, summaries or any other format reproducing or capturing any
8 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
9 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
10 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
11 reports, attorney work product, and consultant and expert work product, even if such
12 materials contain Protected Material. Any such archival copies that contain or
13 constitute Protected Material remain subject to this Protective Order as set forth in
14 Section 4 (DURATION).
15 //
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27 //
28
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1 14. VIOLATION
2 Any violation of this Order may be punished by appropriate measur
3 |lincluding, without limitation, contempt proceedings and/or monetary sanctions.
4
5 |]ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD
6
7 || DATED: June 16, 2020
8
9 ___/s/ Aidan W. Butler
AIDAN W. BUTLER
10 Attorney for Plaintiff
11
12
13 DATED: June 16, 2020
14 BARRON & NEWBURGER, P.C.
15
16
/s/ Timothy Johnson
TIMOTHY P. JOHNSON
18 Attorneys for Defendants
19
20
21
22
33 FOR GOOD CAUSE SHOWN, IT SO ORDERED.
Dated: June 17, 2020
ated: June 17, .
25 Rapetia . □□
26 HON. ROZELLA A. OLIVER
27 United States Magistrate Judge
28 -15-
EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4
I,________________________ [print or type full name], of _________________
5
[print or type full address], declare under penalty of perjury that I have read in its
6
entirety and understand the Stipulated Protective Order that was issued by the United
7
States District Court for the Central District of California on [date] in the case of
8
Taylor v. Rausch, Sturm, Israel, Enerson & Hornik, LLC et al., Case No. 19-cv-
9
08123-ODW-RAO. I agree to comply with and to be bound by all the terms of this
10
Stipulated Protective Order and I understand and acknowledge that failure to so
11
comply could expose me to sanctions and punishment in the nature of contempt. I
12
solemnly promise that I will not disclose in any manner any information or item that
13
is subject to this Stipulated Protective Order to any person or entity except in strict
14
compliance with the provisions of this Order. I further agree to submit to the
15
jurisdiction of the United States District court for the Central District of California for
16
enforcing the terms of this Stipulated Protective Order, even if such enforcement
17
proceedings occur after termination of this action. I hereby appoint ____________
18
[print or type full name] of ________________________ [print or type full address
19
and telephone number] as my California agent for service of process in connection
20
with this action or any proceedings related to enforcement of this Stipulated
21
Protective Order.
22
Date: _______________
23
City and State where sworn and signed: ___________________________
24
25
Printed name: ___________________________
26
27
Signature: __________________
28
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