even stipulated protective 7 orders require good cause showing
How later courts described this case
- even stipulated protective 7 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 THE ESTATE OF TREVOR LOFLIN, ) Case No. 8:24-cv-01075-JVS-JDE
)
11 by and through its successor in interest, )
Paul Loflin, Jr.; and PAUL LOFLIN, JR., ) STIPULATED PROTECTIVE ORDER
12 )
)
13 Plaintiffs, )
)
14 v. )
)
15 CITY OF HUNTINGTON BEACH, and )
)
16 DOES 1-25, )
)
17 )
Defendants.
)
18
Based on the parties’ stipulation (Dkt. 27), and for good cause shown, the
19
Court finds and orders as follows.
20
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 be
24
warranted. Accordingly, the parties hereby stipulate to and petition the Court to
25
enter the following Stipulated Protective Order. The parties acknowledge that this
26
Order does not confer blanket protections on all disclosures or responses to
27
28 discovery and that the protection it affords from public disclosure and use extends
1 only to the limited information or items that are entitled to confidential treatment
2 under the applicable legal principles.
3 2. GOOD CAUSE STATEMENT
4 Disclosure and discovery activity in this action are likely to involve
5 production of confidential, proprietary, or private information for which special
6
protection from public disclosure and from use for any purpose other than
7
prosecuting this litigation may be warranted. Such confidential and private
8
materials and information consist of, among other things, the following: medical
9
records; mental health records; criminal background documents; law enforcement
10
records; investigative reports; personnel records; and information otherwise
11
generally unavailable to the public, or which may be privileged or otherwise
12
protected from disclosure under state or federal statutes, court rules, case decisions,
13
or common law.
14
Accordingly, to expedite the flow of information, to facilitate the prompt
15
resolution of disputes over confidentiality of discovery materials, to adequately
16
protect information the parties are entitled to keep confidential, to ensure that the
17
parties are permitted reasonable necessary uses of such material in preparation for
18
and in the conduct of trial, to address their handling at the end of the litigation, and
19
serve the ends of justice, a protective order for such information is justified in this
20
matter. It is the intent of the parties that information will not be designated as
21
confidential for tactical reasons and that nothing be so designated without a good
22
faith belief that it has been maintained in a confidential, non-public manner, and
23
there is good cause why it should not be part of the public record of this case.
24
3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
25
The parties further acknowledge that this Stipulated Protective Order does
26
not entitle them to file confidential information under seal; Local Civil Rule 79-5
27
sets forth the procedures that must be followed and the standards that will be
28
applied when a party seeks permission from the court to file material under seal.
1 There is a strong presumption that the public has a right of access to judicial
2 proceedings and records in civil cases. In connection with non-dispositive motions,
3 good cause must be shown to support a filing under seal. See Kamakana v. City
4 and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
5 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
6
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective
7
orders require good cause showing), and a specific showing of good cause or
8
compelling reasons with proper evidentiary support and legal justification, must be
9
made with respect to Protected Material that a party seeks to file under seal. The
10
parties’ mere designation of Disclosure or Discovery Material as
11
CONFIDENTIAL does not— without the submission of competent evidence by
12
declaration, establishing that the material sought to be filed under seal qualifies as
13
confidential, privileged, or otherwise protectable—constitute good cause.
14
Further, if a party requests sealing related to a dispositive motion or trial,
15
then compelling reasons, not only good cause, for the sealing must be shown, and
16
the relief sought shall be narrowly tailored to serve the specific interest to be
17
protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
18
2010). For each item or type of information, document, or thing sought to be filed
19
or introduced under seal, the party seeking protection must articulate compelling
20
reasons, supported by specific facts and legal justification, for the requested sealing
21
22 order. Again, competent evidence supporting the application to file documents
23 under seal must be provided by declaration.
24 Any document that is not confidential, privileged, or otherwise protectable
25 in its entirety will not be filed under seal if the confidential portions can be
26 redacted. If documents can be redacted, then a redacted version for public viewing,
27 omitting only the confidential, privileged, or otherwise protectable portions of the
28
1 document, shall be filed. Any application that seeks to file documents under seal in
2 their entirety should include an explanation of why redaction is not feasible.
3 4. DEFINITIONS
4 4.1 Action: this pending federal lawsuit, Estate of Trevor Loflin et al. v.
5 City of Huntington Beach et al., case no. 8:24-cv-01075-JVS-JDE
6
4.2 Challenging Party: a Party or Non-Party that challenges the
7
designation of information or items under this Order.
8
4.3 “CONFIDENTIAL” Information or Items: information (regardless of
9
how it is generated, stored or maintained) or tangible things that qualify for
10
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
11
the Good Cause Statement.
12
4.4 Counsel: Outside Counsel of Record and House Counsel (as well as
13
their support staff).
14
4.5 Designating Party: a Party or Non-Party that designates information or
15
items that it produces in disclosures or in responses to discovery as
16
“CONFIDENTIAL.”
17
4.6 Disclosure or Discovery Material: all items or information, regardless
18
of the medium or manner in which it is generated, stored, or maintained (including,
19
among other things, testimony, transcripts, and tangible things), that are produced
20
or generated in disclosures or responses to discovery.
21
22 4.7 Expert: a person with specialized knowledge or experience in a matter
23 pertinent to the litigation who has been retained by a Party or its counsel to serve
24 as an expert witness or as a consultant in this Action.
25 4.8 House Counsel: attorneys who are employees of a party to this
26 Action. House Counsel does not include Outside Counsel of Record or any other
27 outside counsel.
28 4.9 Non-Party: any natural person, partnership, corporation, association or
1 other legal entity not named as a Party to this action.
2 4.10 Outside Counsel of Record: attorneys who are not employees of a
3 party to this Action but are retained to represent a party to this Action and have
4 appeared in this Action on behalf of that party or are affiliated with a law firm that
5 has appeared on behalf of that party, and includes support staff.
6
4.11 Party: any party to this Action, including all of its officers, directors,
7
employees, consultants, retained experts, and Outside Counsel of Record (and their
8
support staffs).
9
4.12 Producing Party: a Party or Non-Party that produces Disclosure or
10
Discovery Material in this Action.
11
4.13 Professional Vendors: persons or entities that provide litigation
12
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
13
demonstrations, and organizing, storing, or retrieving data in any form or medium)
14
and their employees and subcontractors.
15
4.14 Protected Material: any Disclosure or Discovery Material that is
16
designated as “CONFIDENTIAL.”
17
4.15 Receiving Party: a Party that receives Disclosure or Discovery
18
Material from a Producing Party.
19
5. SCOPE
20
The protections conferred by this Stipulation and Order cover not only
21
22 Protected Material (as defined above), but also (1) any information copied or
23 extracted from Protected Material; (2) all copies, excerpts, summaries, or
24 compilations of Protected Material; and (3) any testimony, conversations, or
25 presentations by Parties or their Counsel that might reveal Protected Material.
26 Any use of Protected Material at trial shall be governed by the orders of the
27 trial judge and other applicable authorities. This Order does not govern the use of
28 Protected Material at trial.
1 6. DURATION
2 Once a case proceeds to trial, information that was designated as
3 CONFIDENTIAL or maintained pursuant to this protective order used or
4 introduced as an exhibit at trial becomes public and will be presumptively
5 available to all members of the public, including the press, unless compelling
6
reasons supported by specific factual findings to proceed otherwise are made to the
7
trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
8
(distinguishing “good cause” showing for sealing documents produced in
9
discovery from “compelling reasons” standard when merits-related documents are
10
part of court record). Accordingly, the terms of this protective order do not extend
11
beyond the commencement of the trial.
12
7. DESIGNATING PROTECTED MATERIAL
13
7.1 Exercise of Restraint and Care in Designating Material for
14
Protection. Each Party or Non-Party that designates information or
15
items for protection under this Order must take care to limit any such designation
16
to specific material that qualifies under the appropriate standards. The Designating
17
Party must designate for protection only those parts of material, documents, items
18
or oral or written communications that qualify so that other portions of the
19
material, documents, items or communications for which protection is not
20
warranted are not swept unjustifiably within the ambit of this Order.
21
22 Mass, indiscriminate or routinized designations are prohibited. Designations
23 that are shown to be clearly unjustified or that have been made for an improper
24 purpose (e.g., to unnecessarily encumber the case development process or to
25 impose unnecessary expenses and burdens on other parties) may expose the
26 Designating Party to sanctions.
27 / / /
28 / / /
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
13
contains protected material. If only a portion of the material on a page qualifies for
14
protection, the Producing Party also must clearly identify the protected portion(s)
15
(e.g., by making appropriate markings in the margins).
16
A Party or Non-Party that makes original documents available for inspection
17
need not designate them for protection until after the inspecting Party has indicated
18
which documents it would like copied and produced. During the inspection and
19
before the designation, all of the material made available for inspection shall be
20
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
21
22 documents it wants copied and produced, the Producing Party must determine
23 which documents, or portions thereof, qualify for protection under this Order.
24 Then, before producing the specified documents, the Producing Party must affix
25 the “CONFIDENTIAL legend” to each page that contains Protected Material. If
26 only a portion of the material on a page qualifies for protection, the Producing
27 Party also must clearly identify the protected portion(s) (e.g., by making
28 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
3 the deposition all protected testimony.
4 (c) for information produced in some form other than documentary
5 and for any other tangible items, that the Producing Party affix in a prominent
6
place on the exterior of the container or containers in which the information is
7
stored the legend “CONFIDENTIAL.” If only a portion or portions of the
8
information warrants protection, the Producing Party, to the extent practicable,
9
shall identify the 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
13
material. Upon timely correction of a designation, the Receiving Party must make
14
reasonable efforts to assure that the material is treated in accordance with the
15
provisions of this Order.
16
8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
17
8.1. Timing of Challenges. Any Party or Non-Party may challenge a
18
designation of confidentiality at any time that is consistent with the Court’s
19
Scheduling Order.
20
8.2 Meet and Confer. The Challenging Party shall initiate the dispute
21
22 resolution process under Local Rule 37-1 et seq.
23 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint
24 stipulation pursuant to Local Rule 37-2.
25 8.4 The burden of persuasion in any such challenge proceeding shall be on the
26 Designating Party. Frivolous challenges, and those made for an improper purpose
27 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
28 expose the Challenging Party to sanctions. Unless the Designating Party has waived
1 or withdrawn the confidentiality designation, all parties shall continue to afford the
2 material in question the level of protection to which it is entitled under the Producing
3 Party’s designation until the Court rules on the challenge.
4 9. ACCESS TO AND USE OF PROTECTED MATERIAL
5 9.1 Basic Principles. A Receiving Party may use Protected Material that is
6
disclosed or produced by another Party or Non-Party in this Action only for
7
prosecuting, defending or attempting to settle this Action. Such Protected Material
8
may be disclosed only to the categories of persons and under the conditions
9
described in this Order. When the Action has been terminated, a Receiving Party
10
must comply with the provisions of section 15 below (FINAL DISPOSITION).
11
Protected Material must be stored and maintained by a Receiving Party at a
12
location and in a secure manner that ensures that access is limited to the persons
13
authorized under this Order.
14
9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
15
otherwise ordered by the court or permitted in writing by the Designating Party, a
16
Receiving Party may disclose any information or item designated
17
“CONFIDENTIAL” only to:
18
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
19
well as employees of said Outside Counsel of Record to whom it is reasonably
20
necessary to disclose the information for this Action;
21
22 (b) the officers, directors, and employees (including House Counsel)
23 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
24 (c) Experts (as defined in this Order) of the Receiving Party to whom
25 disclosure is reasonably necessary for this Action and who have signed the
26 “Acknowledgment and Agreement to Be Bound” (Exhibit A)
27 (d) the court and its personnel;
28 (e) court reporters and their staff;
1 (f) professional jury or trial consultants, mock jurors, and Professional
2 Vendors to whom disclosure is reasonably necessary for this Action and who have
3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
4 (g) the author or recipient of a document containing the information or
5 a custodian or other person who otherwise possessed or knew the information;
6
(h) during their depositions, witnesses, and attorneys for witnesses, in
7
the Action to whom disclosure is reasonably necessary provided: (1) the deposing
8
party requests that the witness sign the form attached as Exhibit A hereto; and (2)
9
they will not be permitted to keep any confidential information unless they sign the
10
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
11
agreed by the Designating Party or ordered by the court. Pages of transcribed
12
deposition testimony or exhibits to depositions that reveal Protected Material may
13
be separately bound by the court reporter and may not be disclosed to anyone
14
except as permitted under this Stipulated Protective Order; and
15
(i) any mediators or settlement officers and their supporting personnel,
16
mutually agreed upon by any of the parties engaged in settlement discussions.
17
10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
18
PRODUCED IN OTHER LITIGATION
19
If a Party is served with a subpoena or a court order issued in other litigation
20
that compels disclosure of any information or items designated in this Action as
21
22 “CONFIDENTIAL,” that Party must:
23 (a) promptly notify in writing the Designating Party. Such notification
24 shall include a copy of the subpoena or court order;
25 (b) promptly notify in writing the party who caused the subpoena or
26 order to issue in the other litigation that some or all of the material covered by the
27 subpoena or order is subject to this Protective Order. Such notification shall
28 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
13
(a) The terms of this Order are applicable to information produced by
14
a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
15
information produced by Non-Parties in connection with this litigation is protected
16
by the remedies and relief provided by this Order. Nothing in these provisions
17
should be construed as prohibiting a Non-Party from seeking additional
18
protections.
19
(b) In the event that a Party is required, by a valid discovery request,
20
to produce a Non-Party’s confidential information in its possession, and the Party
21
22 is subject to an agreement with the Non-Party not to produce the Non-Party’s
23 confidential information, then the Party shall:
24 (1) promptly notify in writing the Requesting Party and the Non-Party
25 that some or all of the information requested is subject to a confidentiality
26 agreement with a Non-Party;
27 (2) promptly provide the Non-Party with a copy of the Stipulated
28 Protective Order in this Action, the relevant discovery request(s), and a reasonably
1 specific description of the information requested; and
2 (3) make the information requested available for inspection by the
3 Non-Party, if requested.
4 (c) If the Non-Party fails to seek a protective order from this court
5 within 14 days of receiving the notice and accompanying information, the
6
Receiving Party may produce the Non-Party’s confidential information responsive
7
to the discovery request. If the Non-Party timely seeks a protective order, the
8
Receiving Party shall not produce any information in its possession or control that
9
is subject to the confidentiality agreement with the Non-Party before a
10
determination by the court. Absent a court order to the contrary, the Non-Party
11
shall bear the burden and expense of seeking protection in this court of its
12
Protected Material.
13
12. UNAUTHORIZED DISCLOSURE OF PROTECTED
14 MATERIAL
15
If a Receiving Party learns that, by inadvertence or otherwise, it has
16
disclosed Protected Material to any person or in any circumstance not authorized
17
under this Stipulated Protective Order, the Receiving Party must immediately (a)
18
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
19
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
20
the person or persons to whom unauthorized disclosures were made of all the terms
21
22 of this Order, and (d) request such person or persons to execute the
23 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A.
24 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
25
26 When a Producing Party gives notice to Receiving Parties that certain
27 inadvertently produced material is subject to a claim of privilege or other
28 protection, the obligations of the Receiving Parties are those set forth in Federal
1 Rule of Civil\ Procedure 26(b)(5)(B). This provision is not intended to modify
2 whatever procedure may be established in an e-discovery order that provides for
3 production without prior privilege review. Pursuant to Federal Rule of Evidence
4 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
5 of a communication or information covered by the attorney-client privilege or
6
work product protection, the parties may incorporate their agreement in the
7
stipulated protective order submitted to the court.
8
14. MISCELLANEOUS
9
14.1 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
14.2 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
14
this Stipulated Protective Order. Similarly, no Party waives any right to object on
15
any ground to use in evidence of any of the material covered by this Protective
16
Order.
17
14.3 Filing Protected Material. A Party that seeks to file under seal any
18
Protected Material must comply with Local Civil Rule 79-5. Protected Material
19
may only be filed under seal pursuant to a court order authorizing the sealing of the
20
specific Protected Material. If a Party’s request to file Protected Material under
21
22 seal is denied by the court, then the Receiving Party may file the information in the
23 public record unless otherwise instructed by the court.
24 15. FINAL DISPOSITION
25 After the final disposition of this Action, as defined in paragraph 6, within
26 60 days of a written request by the Designating Party, each Receiving Party must
27 return all Protected Material to the Producing Party or destroy such material. As
28 used in this subdivision, “all Protected Material” includes all copies, abstracts,
1 ||compilations, summaries, and any other format reproducing or capturing any of the
2 || Protected Material. Whether the Protected Material is returned or destroyed, the
3 || Receiving Party must submit a written certification to the Producing Party (and, if
4 not the same person or entity, to the Designating Party) by the 60-day deadline that
5 (1) identifies (by category, where appropriate) all the Protected Material that was
6 |! returned or destroyed and (2) affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries or any other format reproducing or
8 capturing any of the Protected Material. Notwithstanding this provision, Counsel
are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition
and trial exhibits, expert reports, attorney work product, and consultant and expert
2 work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this
15 Protective Order as set forth in Section 6 (DURATION).
6 16. VIOLATION
Any violation of this Order may be punished by appropriate measures
18 including, without limitation, contempt proceedings and/or monetary sanctions.
19
29 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
21
22 || DATED: February 11, 2025 Lf ML.
23 Lie : a
24 D. EARLY
95 nited States Magistrate Judge
26
27
28
14
1
EXHIBIT A
2
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
6 Protective Order that was issued by the United States District Court for the Central
7 District of California on February 11, 2025, in the case of Estate of Trevor Loflin et
8 al. v. City of Huntington Beach et al., case no. 8:24-cv-01075-JVS-JDE. I agree to
9 comply with and to be bound by all the terms of this Stipulated Protective Order
10 and I understand and acknowledge that failure to do so could expose me to
11 sanctions and punishment in the nature of contempt. I solemnly promise that I will
12 not disclose in any manner any information or item that is subject to this Stipulated
13 Protective Order to any person or entity except in strict compliance with the
14 provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District
16 Court for the Southern District of California for the purpose of enforcing the terms
17 of this Stipulated Protective Order, even if such enforcement proceedings occur
18 after termination of this action.
19 I hereby appoint __________________________ [print or type full name] of
20 _______________________________________ [print or type full address and
21 telephone number] as my California agent for service of process in connection with
22 this action or any proceedings related to enforcement of this Stipulated Protective
23 Order.
24
Date: ______________________________________
25
City and State where sworn and signed: _________________________________
26
Printed name: _______________________________
27
Signature: __________________________________
28