even stipulated 14 protective orders require good cause showing
How later courts described this case
- even stipulated 14 protective orders require good cause showing
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
EDMOND CARMONA, ABRAHAM CA SE NO. 8:20-cv-01905-JVS-JDE
11 MENDOZA, ROGER NOGUEIRA,
THOMAS ARRIOLA, BURNETT Hon. John. D. Early
12 BRULEE, GYGORY DIAZ, DANIEL
ETCHEPARE, RAUL QUIROZ, STIPULATED PROTECTIVE
13 on behalf of themselves and all others ORDER
similarly situated, and all other aggrieved
14 employees,
15 Plaintiffs,
16 v.
17 DOMINO’S PIZZA, LLC, a Michigan
Corporation, and DOES 1-10, inclusive,
18
Defendant.
19
20
21 Based on the Stipulation (Dkt. 53) by and between Plaintiffs Edmond
22 Carmona, Abraham Mendoza, Roger Nogueira, Thomas Arriola, Burnett Brulee,
23 Gygory Diaz, Daniel Etchepare, and Raul Quiroz (“Plaintiffs”) and Defendant
24 Domino’s Pizza LLC (“Defendant”) (collectively, the “Parties”), and for good cause
25 shown, the Court finds and orders as follows.
26 1. PURPOSES AND LIMITATIONS
27 Discovery in this action is likely to involve production of confidential,
28 proprietary or private information for which special protection from public
1 disclosure and from use for any purpose other than pursuing this litigation may be
2 warranted. Accordingly, the Parties hereby stipulate to and petition the Court to
3 enter the following Stipulated Protective Order. The parties acknowledge that this
4 Order does not confer blanket protections on all disclosures or responses to
5 discovery and that the protection it affords from public disclosure and use extends
6 only to the limited information or items that are entitled to confidential treatment
7 under the applicable legal principles.
8 2. GOOD CAUSE STATEMENT
9 This action is likely to involve employee records, trade secrets, and other
10 valuable commercial, financial, technical and/or proprietary information for which
11 special protection from public disclosure and from use for any purpose other than
12 prosecution of this action is warranted. Such private, confidential, and/or
13 proprietary materials and information consist of, among other things, employees’
14 personally identifiable information, compensation, disciplinary records,
15 documented performance conversations, and personnel files, confidential business
16 or financial information, information regarding confidential business practices, or
17 other confidential commercial information (including information implicating
18 privacy rights of third parties), information otherwise generally unavailable to the
19 public, or which may be privileged or otherwise protected from disclosure under
20 state or federal statutes, court rules, case decisions, or common law. Accordingly,
21 to expedite the flow of information, to facilitate the prompt resolution of disputes
22 over confidentiality of discovery materials, to adequately protect information the
23 Parties are entitled to keep confidential, to ensure that the Parties are permitted
24 reasonable necessary uses of such material in preparation for and in the conduct of
25 trial, to address their handling at the end of the litigation, and to serve the ends of
26 justice, a protective order for such information is justified in this matter. It is the
27 intent of the parties that information will not be designated as confidential for
28 tactical reasons and that nothing be so designated without a good faith belief that
1 it has been maintained in a confidential, non-public manner, and there is good
2 cause why it should not be part of the public record of this case.
3 3. UNDER SEAL FILING PROCEDURE
4 As set forth in Section 14.3, below, that this Stipulated Protective Order
5 does not entitle the Parties to file confidential information under seal; Local Civil
6 Rule 79-5 sets forth the procedures that must be followed and the standards that
7 will be applied when a party seeks permission from the court to file material under
8 seal. There is a strong presumption that the public has a right of access to judicial
9 proceedings and records in civil cases. In connection with non-dispositive
10 motions, good cause must be shown to support a filing under seal. See Kamakana
11 v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.
12 Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.
13 Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
14 protective orders require good cause showing), and a specific showing of good
15 cause or compelling reasons with proper evidentiary support and legal
16 justification, must be made with respect to Protected Material that a party seeks to
17 file under seal. The parties’ mere designation of Disclosure or Discovery Material
18 as CONFIDENTIAL or otherwise does not— without the submission of
19 competent evidence by declaration, establishing that the material sought to be
20 filed under seal qualifies as confidential, privileged, or otherwise protectable—
21 constitute good cause.
22 Further, if a party requests sealing related to a dispositive motion or trial,
23 then compelling reasons, not only good cause, for the sealing must be shown, and
24 the relief sought shall be narrowly tailored to serve the specific interest to be
25 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
26 2010). For each item or type of information, document, or thing sought to be filed
27 or introduced under seal, the party seeking protection must articulate compelling
28 reasons, supported by specific facts and legal justification, for the requested
1 sealing order. Again, competent evidence supporting the application to file
2 documents under seal must be provided by declaration.
3 Any document that is not confidential, privileged, or otherwise protectable in
4 its entirety will not be filed under seal if the confidential portions can be redacted.
5 If documents can be redacted, then a redacted version for public viewing, omitting
6 only the confidential, privileged, or otherwise protectable portions of the document,
7 shall be filed. Any application that seeks to file documents under seal in their
8 entirety should include an explanation of why redaction is not feasible.
9 4. DEFINITIONS
10 4.1. Action: This pending federal lawsuit.
11 4.2. Challenging Party: a Party or Non-Party that challenges the
12 designation of information or items under this Order.
13 4.3. “CONFIDENTIAL” Information or Items: information
14 (regardless of how it is generated, stored or maintained) or tangible things that
15 qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified
16 above in the Good Cause Statement.
17 4.4. Counsel: Outside Counsel of Record and House Counsel (as well
18 as their support staff).
19 4.5. Designating Party: a Party or Non-Party that designates
20 information or items that it produces in disclosures or in responses to discovery as
21 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
22 ONLY.”
23 4.6. Disclosure or Discovery Material: all items or information,
24 regardless of the medium or manner in which it is generated, stored, or maintained
25 (including, among other things, testimony, transcripts, and tangible things), that are
26 produced or generated in disclosures or responses to discovery.
27 4.7. “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
28 Information or Items: extremely sensitive “Confidential Information or Items,”
1 disclosure of which to another Party or Non-Party would create substantial risk of
2 serious harm that could not be avoided by less restrictive means and that qualify for
3 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
4 the Good Cause Statement.
5 4.8. Expert: a person with specialized knowledge or experience in a
6 matter pertinent to the litigation who has been retained by a Party or its counsel to
7 serve as an expert witness or as a consultant in this Action.
8 4.9. House Counsel: attorneys who are employees of a party to this
9 Action. House Counsel does not include Outside Counsel of Record or any other
10 outside counsel.
11 4.10. Non-Party: any natural person, partnership, corporation,
12 association or other legal entity not named as a Party to this action.
13 4.11. Outside Counsel of Record: attorneys who are not employees of a
14 party to this Action but are retained to represent a party to this Action and have
15 appeared in this Action on behalf of that party or are affiliated with a law firm that
16 has appeared on behalf of that party, and includes support staff.
17 4.12. Party: any party to this Action, including all of its officers, directors,
18 employees, consultants, retained experts, and Outside Counsel of Record (and their
19 support staffs).
20 4.13. Producing Party: a Party or Non-Party that produces Disclosure or
21 Discovery Material in this Action.
22 4.14. Professional Vendors: persons or entities that provide litigation
23 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
24 demonstrations, and organizing, storing, or retrieving data in any form or medium)
25 and their employees and subcontractors.
26 4.15. Protected Material: any Disclosure or Discovery Material that is
27 designated as “CONFIDENTIAL ” or “HIGHLY CONFIDENTIAL –
28 ATTORNEYS’ EYES ONLY.”
1 4.16. Receiving Party: a Party that receives Disclosure or Discovery
2 Material from a Producing Party.
3 4.17. Domino’s Employee Information: all information that is provided by
4 Domino’s to Plaintiffs’ attorneys that identifies or can be used to identify a
5 particular individual, including without limitation, employee personnel records,
6 names, contact information, addresses, phone numbers, email addresses, employee
7 numbers, and social security numbers. Unless otherwise designated as
8 “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
9 ONLY” Domino’s Employee Information does not include information provided
10 by Domino’s regarding Plaintiffs.
11 5. SCOPE
12 The protections conferred by this Stipulation and Order cover not only
13 Protected Material (as defined above), but also (1) any information copied or
14 extracted from Protected Material; (2) all copies, excerpts, summaries, or
15 compilations of Protected Material; and (3) any testimony, conversations, or
16 presentations by Parties or their Counsel that might reveal Protected Material.
17 Any use of Protected Material at trial shall be governed by the orders of the
18 trial judge and other applicable authorities. This Order does not govern the use of
19 Protected Material at trial.
20 6. DURATION
21 Even after final disposition of this litigation, the confidentiality obligations
22 imposed by this Order shall remain in effect until a Designating Party agrees
23 otherwise in writing or a court order otherwise directs. Final disposition shall be
24 deemed to be the later of (1) dismissal of all claims and defenses in this action, with
25 or without prejudice; and (2) final judgment herein after the completion and
26 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
27 including the time limits for filing any motions or applications for extension of time
28 pursuant to applicable law.
1
2 7. DESIGNATING PROTECTED MATERIAL
3 7.1 Exercise of Restraint and Care in Designating Material for Protection.
4 Each Party or Non-Party that designates information or items for protection under
5 this Order must take care to limit any such designation to specific material that
6 qualifies under the appropriate standards. The Designating Party must designate for
7 protection only those parts of material, documents, items or oral or written
8 communications that qualify so that other portions of the material, documents, items
9 or communications for which protection is not warranted are not swept unjustifiably
10 within the ambit of this Order.
11 Mass, indiscriminate or routinized designations are prohibited. Designations
12 that are shown to be clearly unjustified or that have been made for an improper
13 purpose (e.g., to unnecessarily encumber the case development process or to impose
14 unnecessary expenses and burdens on other parties) may expose the Designating
15 Party to sanctions.
16 If it comes to a Designating Party’s attention that information or items that it
17 designated for protection do not qualify for protection, that Designating Party must
18 promptly notify all other Parties that it is withdrawing the inapplicable designation.
19 7.2 Manner and Timing of Designations. Except as otherwise provided in
20 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material
21 that qualifies for protection under this Order must be clearly so designated before
22 the material is disclosed or produced.
23 Designation in conformity with this Order requires:
24 (a) for information in documentary form (e.g., paper or electronic
25 documents, but excluding transcripts of depositions or other pretrial or trial
26 proceedings), that the Producing Party affix at a minimum, the legend
27 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or “HIGHLY
28 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (hereinafter “HIGHLY
1 CONFIDENTIAL legend”), to each page that contains protected material. If only a
2 portion of the material on a page qualifies for protection, the Producing Party also
3 must clearly identify the protected portion(s) (e.g., by making appropriate markings
4 in the margins).
5 A Party or Non-Party that makes original documents available for inspection
6 need not designate them for protection until after the inspecting Party has indicated
7 which documents it would like copied and produced. During the inspection and
8 before the designation, all of the material made available for inspection shall be
9 deemed “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
10 EYES ONLY.” After the inspecting Party has identified the documents it wants
11 copied and produced, the Producing Party must determine which documents, or
12 portions thereof, qualify for protection under this Order. Then, before producing the
13 specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
14 or “HIGHLY CONFIDENTIAL legend” to each page that contains Protected
15 Material. If only a portion of the material on a page qualifies for protection, the
16 Producing Party also must clearly identify the protected portion(s) (e.g., by making
17 appropriate markings in the margins).
18 (b) for testimony given in depositions that the Designating Party
19 identifies the Disclosure or Discovery Material on the record, before the close of
20 the deposition all protected testimony.
21 (c) for information produced in some form other than documentary and
22 for any other tangible items, that the Producing Party affix in a prominent place on
23 the exterior of the container or containers in which the information is stored the
24 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
25 EYES ONLY.” If only a portion or portions of the information warrants protection,
26 the Producing Party, to the extent practicable, shall identify the protected portion(s).
27 Such designation will, without more, subject the information produced or
28 provided under said designation to the provisions of this Order.
1 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
2 failure to designate qualified information or items does not, standing alone, waive
3 the Designating Party’s right to secure protection under this Order for such material.
4 If a Party inadvertently produces Protected Material without an appropriate
5 designation, the Producing Party shall give written notice of such inadvertent
6 production to the Receiving Party within twenty (20) days of discovering the
7 inadvertent production. The Producing Party shall also give the Receiving Party an
8 appropriately designated copy of the Protected Material. Upon receiving notice of
9 the inadvertent production, the Receiving Party shall promptly return the
10 inadvertently produced Protected Materials, along with all copies of such Protected
11 Material, and shall retain only the appropriately designated copy of the Protected
12 Material.
13 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
14 8.1 Timing of Challenges. Any Party or Non-Party may challenge a
15 designation of confidentiality at any time that is consistent with the Court’s
16 Scheduling Order.
17 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
18 resolution process under Local Rule 37-1 et seq.
19 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
20 joint stipulation pursuant to Local Rule 37-2.
21 8.4 The burden of persuasion in any such challenge proceeding shall be on
22 the Designating Party. Frivolous challenges, and those made for an improper
23 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
24 parties) may expose the Challenging Party to sanctions. Unless the Designating
25 Party has waived or withdrawn the confidentiality designation, all parties shall
26 continue to afford the material in question the level of protection to which it is
27 entitled under the Producing Party’s designation until the Court rules on the
28 challenge. Any motion challenging a party’s designation of material as
1 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
2 ONLY” information or seeking to modify or amend the Proposed Protective must
3 be brought in strict compliance with Local Rules 37-1 and 37-2 (including the Joint
4 Stipulation requirement).
5 9. ACCESS TO AND USE OF PROTECTED MATERIAL
6 9.1 Basic Principles. A Receiving Party may use Protected Material
7 disclosed or produced by another Party or Non-Party in connection with this Action
8 only for prosecuting, defending or attempting to settle this Action. Such Protected
9 Material may be disclosed only to the categories of persons and under the conditions
10 described in this Order. When the Action has been terminated, a Receiving Party
11 must comply with the provisions of section 15 below (FINAL DISPOSITION).
12 Protected Material must be stored and maintained by a Receiving Party at a
13 location and in a secure manner that ensures that access is limited to the persons
14 authorized under this Order.
15 9.2 Maintaining Security of CONFIDENTIAL Information or Items. The
16 Parties acknowledge discovery may include production of CONFIDENTIAL or
17 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
18 Items, including Domino’s Employee Information. Each Party receiving
19 CONFIDENTIAL or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
20 ONLY” Information or Items through discovery shall have and maintain a
21 comprehensive, written Security Program for Confidential Materials that complies
22 with applicable law and industry best practices for as long as it accesses, stores, or
23 processes CONFIDENTIAL or “HIGHLY CONFIDENTIAL – ATTORNEYS’
24 EYES ONLY” Information or Items obtained through discovery. The Security
25 Program will include physical, administrative, and technical security controls that
26 prevent unauthorized access to, disclosure of, loss of, or use of produced
27 CONFIDENTIAL or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
28 ONLY” Information or Items. The Receiving Party shall immediately notify the
1 Producing Party if produced Confidential Materials are subject to a “Security
2 Breach,” which means any suspected or actual unauthorized access, use, or
3 disclosure. The Receiving Party subject to a Security Breach will, at its own
4 expense, promptly investigate the cause and scope of the Security Breach,
5 preserve relevant evidence in a forensically-sound manner, and cooperate at its
6 own expense in every reasonable way to help mitigate potential misuse or further
7 unauthorized use or disclosure of the CONFIDENTIAL or “HIGHLY
8 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items. If
9 requested by the Producing Party or if otherwise required by law, the Receiving
10 Party shall provide any legally-required notifications and protection services to
11 individuals whose CONFIDENTIAL or “HIGHLY CONFIDENTIAL –
12 ATTORNEYS’ EYES ONLY” Information or Items were involved in the Security
13 Breach, as well as to regulators, government authorities, consumer reporting
14 agencies, and media. The Receiving Party shall provide any such proposed
15 notifications to the Producing Party before sending them, if possible. The
16 Receiving Party shall be solely responsible for all costs and expenses associated
17 with investigating, notifying, mitigating the effects of, and remediating any
18 Security Breach. The Parties shall not disclose CONFIDENTIAL or “HIGHLY
19 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to any
20 third party, except as expressly set forth herein, subject to legal requirements.
21 Plaintiffs’ attorneys will be responsible for ensuring that any Professional Vendors
22 or third parties retained by Plaintiffs or Plaintiffs’ attorneys that have access to
23 any CONFIDENTIAL or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
24 ONLY” Information or Items consistent with paragraph 9.3 below, have security
25 programs that meet the same requirements as set forth in this paragraph.
26 9.3 Domino’s Employee Information. To further ensure that Domino’s
27 Employee Information is adequately protected, the Parties agree that, at the outset
28 of Plaintiffs’ attorneys’ (or their designees’) first contact with each current or
1 former Domino’s employee whose contact information is provided by Domino’s
2 through discovery in this litigation, Plaintiffs’ attorneys (or their designees) will
3 inform each contacted individual that: (a) the decision whether to talk with
4 Plaintiffs’ attorneys (or their designees) is voluntary and the individual has the
5 right not to talk with Plaintiffs’ attorneys (or their designees); and (b) if he or she
6 elects not to talk to Plaintiffs’ attorneys (or their designees), Plaintiffs’ attorneys
7 (or their designees) will terminate the contact and not contact them again.
8 Plaintiffs’ attorneys (or their designees) will also inform each individual
9 that his or her refusal to speak with counsel will not prejudice his or her rights in
10 any way.
11 Plaintiffs’ attorneys (or their designees) will keep a list of all individuals
12 contacted and all individuals who make it known that they do not want to be
13 contacted and preserve that list.
14 9.4 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 (b) the officers, directors, and employees (including House Counsel) of
22 the Receiving Party to whom disclosure is reasonably necessary for this Action;
23 (c) Experts (as defined in this Order) of the Receiving Party to whom
24 disclosure is reasonably necessary for this Action and who have signed the
25 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
26 (d) the court and its personnel;
27 (e) court reporters and their staff;
28
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 a
5 custodian or other person who otherwise possessed or knew the information;
6 (h) during their depositions, witnesses, and attorneys for witnesses, in the
7 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
8 requests that the witness sign the form attached as Exhibit A hereto; and (2) they
9 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 except
14 as permitted under this Stipulated Protective Order; and
15 (i) any mediator or settlement officer and their supporting personnel,
16 mutually agreed upon by any of the parties engaged in settlement discussions.
17 9.5 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
18 ONLY” Information or Items. Unless otherwise ordered by the court or permitted
19 in writing by the Designating Party, a Receiving Party may disclose any
20 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS;
21 EYES ONLY” to:
22 (a) the Receiving Party’s Outside Counsel of Record in this action;
23 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably
24 necessary for this litigation, (2) who have signed the “Acknowledgment
25 and Agreement to Be Bound” (Exhibit A), and (3) as to whom the
26 procedures set forth in paragraph 7.4(a)(2) below, have been followed;
27 (c) the Court and its personnel;
28
1 (d) Professional Vendors and their staff, professional jury or trial consultants,
2 and Professional Vendors to whom disclosure is reasonably necessary for
3 this litigation; and
4 (e) the author or recipient of a document containing the information or a
5 custodian or other person who otherwise possessed or knew the
6 information.
7 Notwithstanding any provision in this Protective Order, Designated Material
8 designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –
9 ATTORNEYS’ EYES ONLY” by a Defendant or Non-Party may not be disclosed
10 to House Counsel or business representatives of any other or business
11 representatives of any other Defendant or Non-Party (including in-house counsel
12 for any affiliates of that Defendant) without written consent of the Producing Party.
13 9.6 Procedures for Approving or Objecting to Disclosure of “HIGHLY
14 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items or
15 Experts.
16 (a) Unless otherwise ordered by the court or agreed to in writing by the
17 Designating Party, a Party that wishes to disclose to an Expert (as defined in this
18 Order) any information or item that has been designated “HIGHLY
19 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b)
20 must first make a written request to the Designating Party that (1) identifies the
21 general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
22 ONLY” information that the Receiving Party seeks permission to disclose to the
23 Expert, (2) sets forth the full name of the Expert and the city and state of his or her
24 primary residence, (3) attaches a copy of the Expert’s current resume, (4)
25 identifies the Expert’s current employer(s), (5) identifies each person or entity
26 form whom the Expert has received compensation or funding for work in his or
27 her areas of expertise or to whom the expert has provided professional services,
28 including in connection with a litigation, at any time during the preceding five
1 years1 and (6) identifies (by name and number for the case, filing date, and
2 location of court) any litigation in connection with which the Expert has offered
3 expert testimony, including through a declaration, report, testimony at a
4 deposition or trial, during the preceding five years.2
5 (b) A Party that makes a request and provides the information specified in the
6 preceding respective paragraph may disclose the subject Protected Material to the
7 identified Expert unless, within 14 days of delivering the request, the Party
8 receives a written objection from the Designating Party. Any such objection must
9 set forth in detail the grounds on which it is based.
10 (c) A Party that receives a timely written objection must meet and confer with
11 the Designating Party (through direct voice to voice dialogue) to try to resolve the
12 matter by agreement within seven days of the written objection. If no agreement is
13 reached, the Party seeking to make the disclosure to the Expert may file a motion
14 as provided in Local Civil Rule 37-1 through 37-4, seeking permission from the
15 court to do so. Any such motion must describe the circumstances with specificity,
16 set forth in detail the reasons why the disclosure to the Expert is reasonably
17 necessary, assess the risk of harm that the disclosure would entail, and suggest any
18 additional means that could be used to reduce that risk. In addition, any such
19 motion must be accompanied by a competent declaration describing the parties’
20 efforts to resolve the matter by agreement (i.e., the extent and the content of the
21
22
1 If the Expert believes any of this information is subject to a confidentiality
23 obligation to a third-party, then the Expert should provide whatever information
the Expert believes can be disclosed without violating any confidentiality
24
agreements, and the Party seeking to disclose to the Expert shall be available to
25 meet and confer with the Designating Party regarding any such engagement.
26 2 It may be appropriate in certain circumstances to request an Expert be restricted
from undertaking certain limited work prior to the termination of the litigation that
27
could foreseeably result in an improper use of the Designating Party’s “HIGHLY
28 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information.
1 meet and confer discussions) and setting forth the reasons advanced by the
2 Designating Party for its refusal to approve the disclosure.
3 In any such proceeding, the Party opposing disclosure to the Expert shall bear
4 the burden of proving that the risk of harm that the disclosure would entail (under
5 the safeguards proposed) outweighs the Receiving Party’s need to disclose the
6 Protected Materials to its Expert.
7 10. PROTECTED MATERIAL SUBPOEANAED OR ORDERED
8 PRODUCED IN OTHER LITIGATION
9
If a Party is served with a subpoena or a court order issued in other
10
litigation that compels disclosure of any information or items designated in this
11
Action as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
12
EYES ONLY” that Party must:
13
(a) promptly notify in writing the Designating Party. Such notification
14
shall include a copy of the subpoena or court order;
15
(b) promptly notify in writing the party who caused the subpoena or order
16
to issue in the other litigation that some or all of the material covered by the
17
subpoena or order is subject to this Protective Order. Such notification shall include
18
a copy of this Stipulated Protective Order; and
19
(c) cooperate with respect to all reasonable procedures sought to be
20
pursued by the Designating Party whose Protected Material may be affected.
21
If the Designating Party timely seeks a protective order, the Party served with
22
the subpoena or court order shall not produce any information designated in this
23
action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
24
EYES ONLY” before a determination by the court from which the subpoena or order
25
issued, unless the Party has obtained the Designating Party’s permission. The
26
Designating Party shall bear the burden and expense of seeking protection in that
27
court of its confidential material and nothing in these provisions should be construed
28
1 as authorizing or encouraging a Receiving Party in this Action to disobey a lawful
2 directive from another court.
3 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
4 PRODUCED IN THIS LITIGATION
5 (a) The terms of this Order are applicable to information produced by a
6 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
7 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by
8 Non-Parties in connection with this litigation is protected by the remedies and relief
9 provided by this Order. Nothing in these provisions should be construed as
10 prohibiting a Non-Party from seeking additional protections.
11 (b) In the event that a Party is required, by a valid discovery request, to
12 produce a Non-Party’s confidential information in its possession, and the Party is
13 subject to an agreement with the Non-Party not to produce the Non-Party’s
14 confidential information, then the Party shall:
15 (1) promptly notify in writing the Requesting Party and the Non-Party
16 that some or all of the information requested is subject to a
17 confidentiality agreement with a Non-Party;
18 (2) promptly provide the Non-Party with a copy of the Stipulated
19 Protective Order in this Action, the relevant discovery request(s), and
20 a reasonably specific description of the information requested; and
21 (3) make the information requested available for inspection by the Non-
22 Party, if requested.
23 (c) If the Non-Party fails to seek a protective order from this court within
24 14 days of receiving the notice and accompanying information, the Receiving Party
25 may produce the Non-Party’s confidential information responsive to the discovery
26 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
27 not produce any information in its possession or control that is subject to the
28 confidentiality agreement with the Non-Party before a determination by the court.
1 Absent a court order to the contrary, the Non-Party shall bear the burden and
2 expense of seeking protection in this court of its Protected Material.
3 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
5 Protected Material to any person or in any circumstance not authorized under this
6 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
7 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
8 to retrieve all unauthorized copies of the Protected Material, (c) inform the person
9 or persons to whom unauthorized disclosures were made of all the terms of this
10 Order, and (d) request such person or persons to execute the “Acknowledgment an
11 Agreement to Be Bound” attached hereto as Exhibit A.
12 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWSE
13 PROTECTED MATERIAL
14 Inadvertent production of a document or other information subject to a
15 claim of privilege or attorney work product will not waive the privilege or the
16 attorney work product doctrine, subject to this paragraph. If a Producing Party
17 produces any material that the Producing Party thereafter claims to be privileged
18 or protected, the Producing Party will give notice thereof to the Receiving Party
19 in writing. Within five days, the material in question (and all notes and work
20 product quoting, referring or relating thereto) will then be returned to the
21 Producing Party, and the Receiving Party will certify that any and all copies have
22 been retrieved and destroyed. If the Receiving Party has disclosed the information
23 to others before being notified of the claim of privilege or protection, the
24 Receiving Party must take reasonable steps to retrieve and return or destroy the
25 disclosed information. The Receiving Party upon receiving a privilege log
26 identifying the document remains free to challenge any claim of privilege or
27 protection, but shall not make any claim that the production of the document
28 caused a waiver of any privilege or protection. Moreover, absent a ruling that the
1 document, data, or information at issue is not privileged or protected, a Receiving
2 Party may not disclose nor make any use whatsoever of the information disclosed
3 in or derived from the document or information at issue. If a Party or counsel for
4 a Party receives a document or other information that appears on its face to be
5 inadvertently produced and subject to a claim of privilege or attorney work
6 product, counsel for the Receiving Party will (i) inform counsel for the Producing
7 Party promptly after becoming aware of the disclosure; (ii) promptly return the
8 document or other information and all copies thereof; and (iii) promptly destroy
9 all notes and other documents containing any reference to, or use of, the
10 inadvertently produced information.
11 14. MISCELLANEOUS
12 14.1 Right to Further Relief. Nothing in this Order abridges the right of any
13 person to seek its modification by the Court in the future.
14 14.2 Right to Assert Other Objections. By stipulating to the entry of this
15 Protective Order, no Party waives any right it otherwise would have to object to
16 disclosing or producing any information or item on any ground not addressed in this
17 Stipulated Protective Order. Similarly, no Party waives any right to object on any
18 ground to use in evidence of any of the material covered by this Protective Order.
19 14.3 Filing Protected Material. A Party that seeks to file under seal any
20 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
21 only be filed under seal pursuant to a court order authorizing the sealing of the
22 specific Protected Material. If a Party’s request to file Protected Material under seal
23 is denied by the court, then the Receiving Party may file the information in the
24 public record unless otherwise instructed by the court.
25 15. FINAL DISPOSITION
26 After the final disposition of this Action, as defined in paragraph 6, within 60
27 days of a written request by the Designating Party, each Receiving Party must return
28 all Protected Material to the Producing Party or destroy such material. As used in
1 || this subdivision, “all Protected Material” includes all copies, abstracts,
2 || compilations, summaries, and any other format reproducing or capturing any of the
3 || Protected Material. Whether the Protected Material is returned or destroyed, the
4 || Receiving Party must submit a written certification to the Producing Party (and, if
5 || not the same person or entity, to the Designating Party) by the 60-day deadline that
6 || (1) identifies (by category, where appropriate) all the Protected Material that was
7 || returned or destroyed and (2) affirms that the Receiving Party has not retained any
8 || copies, abstracts, compilations, summaries or any other format reproducing or
9 || capturing any of the Protected Material. Notwithstanding this provision, Counsel
10 || are entitled to retain an archival copy of all pleadings, motion papers, trial,
11 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition
12 || and trial exhibits, expert reports, attorney work product, and consultant and expert
13 |} work product, even if such materials contain Protected Material. Any such archival
14 || copies that contain or constitute Protected Material remain subject to this Protective
15 || Order as set forth in Section 6 (DURATION).
16 16. VIOLATION
17 Any violation of this Order may be punished by appropriate measures
18 || including, without limitation, contempt proceedings and/or monetary sanctions.
19
20 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
21
22 || Dated: June 2, 2025 LL
23
HN D. EARLY
24 nited States Magistrate-Sidge
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OEREDT ATED AND PROTECTIVE ORPDER. OOOO