Opinion

Harpers Pharmacy, Inc. v. Federal Express Corporation

Court: District Court, C.D. California
Filed: Jul 12, 2024
Cited by: 0 cases
Authority: More cited than 31.2%

distinguishing 11 “good cause” showing for sealing documents produced in discovery from 12 “compelling reasons” standard when merits-related documents are part of court record

How later courts described this case

distinguishing 11 “good cause” showing for sealing documents produced in discovery from 12 “compelling reasons” standard when merits-related documents are part of court record
even 9 stipulated protective orders require good cause showing

Written by the judges who cited it.

The opinion

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 SOUTHERN DIVISION

11 HARPER’S PHARMACY, INC. dba Case No: 8:24-cv-00801-FWS-JDE

AMERIPHARMA, a California

Corporation,

13 STIPULATED PROTECTIVE ORDER

Plaintiff,

14 v.

15 FEDEX CORPORATION, a Delaware

corporation, FEDERAL EXPRESS

CORPORATION, a Delaware

17 corporation, and DOES 2-50, inclusive,

18 Defendants.

Based on the parties’ Stipulation (Dkt. 26) and for good cause shown, the Court

finds and orders as follows.

1. PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,

24 proprietary or private information for which special protection from public

25 disclosure and from use for any purpose other than pursuing this litigation may be

26 warranted. Accordingly, the parties hereby stipulate to and petition the Court to

27 enter the following Stipulated Protective Order. The parties acknowledge that this

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 2. GOOD CAUSE STATEMENT

5 This action is likely to involve or require the exchange of trade secrets, pricing

6 information and other valuable commercial, financial, operational and/or

7 proprietary information for which special protection from public disclosure and

8 from use for any purpose other than prosecution and defense of this action is

9 warranted. Such confidential and proprietary materials and information consist of,

10 among other things, confidential business or financial information, information

11 regarding confidential business practices, or other confidential research,

12 development, or commercial information (including information implicating

privacy rights of third parties), information otherwise generally unavailable to the

public, or which may be privileged or otherwise protected from disclosure under

state or federal statutes, court rules, case decisions, or common law. Accordingly, to

expedite the flow of information, to facilitate the prompt resolution of disputes over

confidentiality of discovery materials, to adequately protect information the parties

are entitled to keep confidential, to ensure that the parties are permitted reasonable

necessary uses of such material in preparation for and in the conduct of trial, to

address their handling at the end of the litigation, and serve the ends of justice, a

protective order for such information is justified in this matter. It is the intent of the

parties that information will not be designated as confidential for tactical reasons

and that nothing be so designated without a good faith belief that it has been

maintained in a confidential, non-public manner, and there is good cause why it

should not be part of the public record of this case.

3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE

The parties further acknowledge, as set forth in Section 14.3, below, that this

Stipulated Protective Order does not entitle them to file confidential information

1 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

2 and the standards that will be applied when a party seeks permission from the court

3 to file material under seal. There is a strong presumption that the public has a right

4 of access to judicial proceedings and records in civil cases. In connection with non-

5 dispositive motions, good cause must be shown to support a filing under seal. See

6 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),

7 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-

8 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even

9 stipulated protective orders require good cause showing), and a specific showing of

10 good cause or compelling reasons with proper evidentiary support and legal

11 justification, must be made with respect to Protected Material that a party seeks to

12 file under seal. The parties’ mere designation of Disclosure or Discovery Material as

CONFIDENTIAL does not— without the submission of competent evidence by

declaration, establishing that the material sought to be filed under seal qualifies as

confidential, privileged, or otherwise protectable—constitute good cause.

Further, if a party requests sealing related to a dispositive motion or trial, then

compelling reasons, not only good cause, for the sealing must be shown, and the

relief sought shall be narrowly tailored to serve the specific interest to be protected.

See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For

each item or type of information, document, or thing sought to be filed or

introduced under seal, the party seeking protection must articulate compelling

reasons, supported by specific facts and legal justification, for the requested sealing

order. Again, competent evidence supporting the application to file documents

under seal must be provided by declaration.

Any document that is not confidential, privileged, or otherwise protectable in its

entirety will not be filed under seal if the confidential portions can be redacted. If

documents can be redacted, then a redacted version for public viewing, omitting

only the confidential, privileged, or otherwise protectable portions of the document,

1 shall be filed. Any application that seeks to file documents under seal in their

2 entirety should include an explanation of why redaction is not feasible.

3 4. DEFINITIONS

4 4.1 Action: this pending action styled Case No. 8:24-cv-00801-FWS-JDE,

5 Harper’s Pharmacy, Inc. dba Ameripharma v. FedEx Corporation, et al, in the

6 United States District Court for the Central District of California.

7 4.2 Challenging Party: a Party or Non-Party that challenges the

8 designation of information or items under this Order.

9 4.3 “CONFIDENTIAL” Information or Items: information (regardless of

10 how it is generated, stored or maintained) or tangible things that qualify for

11 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

12 the Good Cause Statement.

13 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).

4.5 Designating Party: a Party or Non-Party designating information or

items that it produces in disclosures or in responses to discovery as

“CONFIDENTIAL.”

4.6 Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,

among other things, testimony, transcripts, and tangible things), that are produced

or generated in disclosures or responses to discovery.

4.7 Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as

an expert witness or as a consultant in this Action.

4.8 House Counsel: attorneys employees of a party to this Action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.

4.9 Non-Party: any natural person, partnership, corporation, association or

other legal entity not named as a Party to this action.

1 4.10 Outside Counsel of Record: attorneys who are not employees of a party

2 to this Action but are retained to represent a party to this Action and have appeared

3 in this Action on behalf of that party or are affiliated with a law firm that has

4 appeared on behalf of that party, and includes support staff.

5 4.11 Party: any party to this Action, including all of its officers, directors,

6 employees, consultants, retained experts, and Outside Counsel of Record (and their

7 support staffs).

8 4.12 Producing Party: a Party or Non-Party that produces Disclosure or

9 Discovery Material in this Action.

10 4.13 Professional Vendors: persons or entities that provide litigation support

11 services (e.g., photocopying, videotaping, translating, preparing exhibits or

12 demonstrations, and organizing, storing, or retrieving data in any form or medium)

and their employees and subcontractors.

4.14 Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”

4.15 Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.

5. SCOPE

The protections conferred by this Stipulation and Order cover not only

Protected Material (as defined above), but also (1) any information copied or

extracted from Protected Material; (2) all copies, excerpts, summaries, or

compilations of Protected Material; and (3) any testimony, conversations, or

presentations by Parties or their Counsel that might reveal Protected Material.

Any use of Protected Material at trial shall be governed by the orders of the

trial judge and other applicable authorities. This Order does not govern the use of

Protected Material at trial.

The entry of this Stipulation and Protective Order does not alter, waive,

modify, or abridge any right, privilege, or protection otherwise available to any

1 Party with respect to the discovery of matters, including but not limited to any

2 Party’s right to assert the attorney-client privilege, the attorney work product

3 doctrine, or other privileges, or any Party’s right to consent any such assertion.

4 6. DURATION

5 Once a case proceeds to trial, information that was designated as

6 CONFIDENTIAL or maintained pursuant to this protective order used or

7 introduced as an exhibit at trial becomes public and will be presumptively available

8 to all members of the public, including the press, unless compelling reasons

9 supported by specific factual findings to proceed otherwise are made to the trial

10 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing

11 “good cause” showing for sealing documents produced in discovery from

12 “compelling reasons” standard when merits-related documents are part of court

record). Accordingly, the terms of this protective order do not extend beyond the

commencement of the trial.

7. DESIGNATING PROTECTED MATERIAL

7.1 Exercise of Restraint and Care in Designating Material for

Protection. Each Party or Non-Party that designates information or

items for protection under this Order must take care to limit any such designation to

specific material that qualifies under the appropriate standards. The Designating

Party must designate for protection only those parts of material, documents, items

or oral or written communications that qualify so that other portions of the

material, documents, items or communications for which protection is not

warranted are not swept unjustifiably within the ambit of this Order.

Mass, indiscriminate or routinized designations are prohibited. Designations

that are shown to be clearly unjustified or that have been made for an improper

purpose (e.g., to unnecessarily encumber the case development process or to impose

unnecessary expenses and burdens on other parties) may expose the Designating

Party to sanctions.

1 If it comes to a Designating Party’s attention that information or items that it

2 designated for protection do not qualify for protection, that Designating Party must

3 promptly notify all other Parties that it is withdrawing the inapplicable designation.

4 7.2 Manner and Timing of Designations. Except as otherwise provided in

5 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material

6 that qualifies for protection under this Order must be clearly so designated before

7 the material is disclosed or produced.

8 Designation in conformity with this Order requires:

9 (a) for information in documentary form (e.g., paper or electronic

10 documents, but excluding transcripts of depositions or other pretrial or trial

11 proceedings), that the Producing Party affix at a minimum, the legend

12 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

contains protected material. If only a portion of the material on a page qualifies for

protection, the Producing Party also must clearly identify the protected portion(s)

(e.g., by making appropriate markings in the margins).

A Party or Non-Party that makes original documents available for inspection

need not designate them for protection until after the inspecting Party has indicated

which documents it would like copied and produced. During the inspection and

before the designation, all of the material made available for inspection shall be

deemed “CONFIDENTIAL.” After the inspecting Party has identified the

documents it wants copied and produced, the Producing Party must determine

which documents, or portions thereof, qualify for protection under this Order.

Then, before producing the specified documents, the Producing Party must affix the

“CONFIDENTIAL legend” to each page that contains Protected Material. If only

a portion of the material on a page qualifies for protection, the Producing Party also

must clearly identify the protected portion(s) (e.g., by making appropriate markings

in the margins).

/ / /

1 (b) for testimony given in depositions that the Designating Party

2 identifies the Disclosure or Discovery Material on the record, before the close of the

3 deposition all protected testimony.

4 (c) for information produced in some form other than documentary and

5 for any other tangible items, that the Producing Party affix in a prominent place on

6 the exterior of the container or containers in which the information is stored the

7 legend “CONFIDENTIAL.” If only a portion or portions of the information

8 warrants protection, the Producing Party, to the extent practicable, shall identify the

9 protected portion(s).

10 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

11 failure to designate qualified information or items does not, standing alone, waive

12 the Designating Party’s right to secure protection under this Order for such

material, so long as a claim of confidentiality is asserted within 14 days after

discovery of the inadvertent failure. Upon timely correction of a designation, the

Receiving Party must make reasonable efforts to assure that the material is treated

in accordance with the provisions of this Order.

8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

8.1. Timing of Challenges. Any Party or Non-Party may challenge a

designation of confidentiality at any time that is consistent with the Court’s

Scheduling Order.

8.2 Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-1 et seq.

8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a

joint stipulation pursuant to Local Rule 37-2.

8.4 The burden of persuasion in any such challenge proceeding shall be on

the Designating Party. Frivolous challenges, and those made for an improper

purpose (e.g., to harass or impose unnecessary expenses and burdens on other

parties) may expose the Challenging Party to sanctions. Unless the Designating

1 Party has waived or withdrawn the confidentiality designation, all parties shall

2 continue to afford the material in question the level of protection to which it is

3 entitled under the Producing Party’s designation until the Court rules on the

4 challenge.

5 9. ACCESS TO AND USE OF PROTECTED MATERIAL

6 9.1 Basic Principles. A Receiving Party may use Protected Material that is

7 disclosed or produced by another Party or by a Non-Party in connection with this

8 Action only for prosecuting, defending or attempting to settle this Action. Such

9 Protected Material may be disclosed only to the categories of persons and under the

10 conditions described in this Order. When the Action has been terminated, a

11 Receiving Party must comply with the provisions of section 15 below (FINAL

12 DISPOSITION).

Protected Material must be stored and maintained by a Receiving Party at a

location and in a secure manner that ensures that access is limited to the persons

authorized under this Order.

9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party, a

Receiving Party may disclose any information or item designated

“CONFIDENTIAL” only to:

(a) the Receiving Party’s Outside Counsel of Record in this Action, as

well as employees of said Outside Counsel of Record to whom it is reasonably

necessary to disclose the information for this Action;

(b) the officers, directors, and employees (including House Counsel) of

the Receiving Party to whom disclosure is reasonably necessary for this Action;

disclosure is reasonably necessary for this Action and who have signed an

“Acknowledgment and Agreement to Be Bound”;

(d) the court and its personnel;

1 (e) court reporters and their staff;

2 (f) professional jury or trial consultants, mock jurors, and Professional

3 Vendors to whom disclosure is reasonably necessary for this Action and who have

4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

5 (g) the author or recipient of a document containing the information or

6 a custodian or other person who otherwise possessed or knew the information;

7 (h) during their depositions, witnesses, and attorneys for witnesses, in

8 the Action to whom disclosure is reasonably necessary provided: (1) the deposing

9 party requests that the witness sign the form attached as Exhibit A hereto; and (2)

10 they will not be permitted to keep any confidential information unless they sign the

11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

12 agreed by the Designating Party or ordered by the court. Pages of transcribed

deposition testimony or exhibits to depositions that reveal Protected Material may

be separately bound by the court reporter and may not be disclosed to anyone

except as permitted under this Stipulated Protective Order; and

(i) any mediators or settlement officers and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.

10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

PRODUCED IN OTHER LITIGATION

If a Party is served with a subpoena or a court order issued in other litigation

that compels disclosure of any information or items designated in this Action as

“CONFIDENTIAL,” that Party must:

(a) promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;

(b) promptly notify in writing the party who caused the subpoena or

order to issue in the other litigation that some or all of the material covered by the

subpoena or order is subject to this Protective Order. Such notification shall include

a copy of this Stipulated Protective Order; and

1 (c) cooperate with respect to all reasonable procedures sought to be

2 pursued by the Designating Party whose Protected Material may be affected. If the

3 Designating Party timely seeks a protective order, the Party served with the

4 subpoena or court order shall not produce any information designated in this action

5 as “CONFIDENTIAL” before a determination by the court from which the

6 subpoena or order issued, unless the Party has obtained the Designating Party’s

7 permission. The Designating Party shall bear the burden and expense of seeking

8 protection in that court of its confidential material and nothing in these provisions

9 should be construed as authorizing or encouraging a Receiving Party in this Action

10 to disobey a lawful directive from another court.

11 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO

12 BE PRODUCED IN THIS LITIGATION

(a) The terms of this Order are applicable to information produced by a

Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

produced by Non-Parties in connection with this litigation is protected by the

remedies and relief provided by this Order. Nothing in these provisions should be

construed as prohibiting a Non-Party from seeking additional protections.

(b) In the event that a Party is required, by a valid discovery request, to

produce a Non-Party’s confidential information in its possession, and the Party is

subject to an agreement with the Non-Party not to produce the Non-Party’s

confidential information, then the Party shall:

(1) promptly notify in writing the Requesting Party and the Non-Party

that some or all of the information requested is subject to a confidentiality

agreement with a Non-Party;

(2) promptly provide the Non-Party with a copy of the Stipulated

Protective Order in this Action, the relevant discovery request(s), and a reasonably

specific description of the information requested; and

/ / /

1 (3) make the information requested available for inspection by the Non-

2 Party, if requested.

3 (c) If the Non-Party fails to seek a protective order from this court

4 within 14 days of receiving the notice and accompanying information, the

5 Receiving Party may produce the Non-Party’s confidential information responsive

6 to the discovery request. If the Non-Party timely seeks a protective order, the

7 Receiving Party shall not produce any information in its possession or control that

8 is subject to the confidentiality agreement with the Non-Party before a

9 determination by the court. Absent a court order to the contrary, the Non-Party

10 shall bear the burden and expense of seeking protection in this court of its Protected

11 Material.

12 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

persons to whom unauthorized disclosures were made of all the terms of this Order,

and (d) request such person or persons to execute the “Acknowledgment an

Agreement to Be Bound” attached hereto as Exhibit A.

13. INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other protection,

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil\

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

may be established in an e-discovery order that provides for production without prior

privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

1 parties reach an agreement on the effect of disclosure of a communication or

2 information covered by the attorney-client privilege or work product protection, the

3 parties may incorporate their agreement in the stipulated protective order submitted

4 to the court.

5 14. MISCELLANEOUS

6 14.1 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 14.2 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.

14.3 Filing Protected Material. A Party that seeks to file under seal any

Protected Material must comply with Local Civil Rule 79-5. Protected Material may

only be filed under seal pursuant to a court order authorizing the sealing of the

specific Protected Material. If a Party’s request to file Protected Material under seal

is denied by the court, then the Receiving Party may file the information in the public

record unless otherwise instructed by the court.

15. FINAL DISPOSITION

After the final disposition of this Action, as defined in paragraph 6, within 60

days of a written request by the Designating Party, each Receiving Party must return

all Protected Material to the Producing Party or destroy such material. As used in

this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

summaries, and any other format reproducing or capturing any of the Protected

Material. Whether the Protected Material is returned or destroyed, the Receiving

Party must submit a written certification to the Producing Party (and, if not the same

person or entity, to the Designating Party) by the 60-day deadline that (1) identifies

(by category, where appropriate) all the Protected Material that was returned or

! || destroyed and (2) affirms that the Receiving Party has not retained any copies,

2 || abstracts, compilations, summaries or any other format reproducing or capturing any

3 the Protected Material. Notwithstanding this provision, Counsel are entitled to

4 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

5 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

6 || reports, attorney work product, and consultant and expert work product, even if such

7 materials contain Protected Material. Any such archival copies that contain or

8 || constitute Protected Material remain subject to this Protective Order as set forth in

9 || Section 6 (DURATION).

10 16. VIOLATION

11 Any violation of this Order may be punished by appropriate measures

12 |} including, without limitation, contempt proceedings and/or monetary sanctions.

15 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

16 DATED: July 12, 2024

7 i de,

Is hte

19 nited States Magistrate Judge

1 EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, ______________________________________ [print or type full name], of

4 ______________________________________ [print or type full address], declare under

5 penalty of perjury that I have read in its entirety and understand the Stipulated Protective

6 Order that was issued by the United States District Court for the Central District of

7 California on July 12, 2024, in the case of HARPER’S PHARMACY, INC. V. FEDEX

8 CORPORATION, et al., C.D. Cal. Case No. 8:24-00801-FWS-JDEx . I agree to comply

9 with and to be bound by all the terms of this Stipulated Protective Order and I understand

10 and 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 any

12 information or item that is subject to this Stipulated Protective Order to any person or

13 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

15 the Central District of California for the purpose of enforcing the terms of this Stipulated

16 Protective Order, even if such enforcement proceedings occur after termination of

17 this action. I hereby appoint ___________________________[print or type full name]

18 of _________________________________________[print or type full address and

19 telephone number] as my California agent for service of process in connection with this

20 action or any proceedings related to enforcement of this Stipulated Protective Order.

21 Date: _____________________________________________

22 City and State where sworn and signed: __________________________________

23 Printed name: _____________________________________

24 Signature: ________________________________________

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