even stipulated protective orders require good ° cause showing
How later courts described this case
- even stipulated protective orders require good ° cause showing
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
7
CENTRAL DISTRICT OF CALIFORNIA
8
9 CITY OF ANAHEIM Case No.: 8:24-cv-01916-FWS-JDE
10 Plaintiff,
11 vs. STIPULATED PROTECTIVE ORDER
12 SCOTTSDALE INSURANCE
COMPANY and NATIONWIDE
13 MUTUAL INSURANCE COMPANY,
14 Defendants.
15
16 Based on the parties’ Stipulation (Dkt. 26) and for good cause shown, the Court
17 finds and orders as follows.
18 1. PURPOSES AND LIMITATIONS
19 Plaintiff has requested document production from Defendants in this action which
20 Defendants contend includes production of confidential, proprietary or private
21 information for which special protection from public disclosure and from use for any
22 purpose other than pursuing this litigation may be warranted. Accordingly, Plaintiff City
23 of Anaheim and Defendants Scottsdale Insurance Company and Nationwide Mutual
24 Insurance Company (collectively, the “parties”) hereby stipulate to and petition the Court
25 to enter the following Stipulated Protective Order. This Order does not confer blanket
26 protections on all disclosures or responses to discovery and that the protection it affords
27 from public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles.
1 2. GOOD CAUSE STATEMENT
2
This action is likely to involve trade secrets and other valuable research,
3
development, commercial, financial, technical and/or proprietary information for which
4
special protection from public disclosure and from use for any purpose other than
5
prosecution of this action is warranted. Such confidential and proprietary materials and
6
information consist of, among other things, confidential business or financial
7
information, information regarding confidential business practices and procedures,
8
including claims handling manuals, or other confidential research, development, or
9
commercial information (including information implicating privacy rights of third parties
10
such as claim files or personnel records), information otherwise generally unavailable to
11
the public, or which may be privileged or otherwise protected from disclosure under state
12
or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite
13
the flow of information, to facilitate the prompt resolution of disputes over confidentiality
14
of discovery materials, to adequately protect information the parties are entitled to keep
15
confidential, to ensure that the parties are permitted reasonable necessary uses of such
16
material in preparation for and in the conduct of trial, to address their handling at the end
17
of the litigation, and serve the ends of justice, a protective order for such information is
18
justified in this matter. It is the intent of the parties that information will not be
19
designated as confidential for tactical reasons and that nothing be so designated without a
20
good faith belief that it has been maintained in a confidential, non-public manner, and
21
there is good cause why it should not be part of the public record of this case.
22
3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
23
The parties further acknowledge, as set forth in Section 15.3, below, that this
24
Stipulated Protective Order does not entitle them to file confidential information under
25
seal. Local Civil Rule 79-5 sets forth the procedures that must be followed and the
26
standards that will be applied when a party seeks permission from the court to file
27
material under seal. There is a strong presumption that the public has a right of access to
motions, good cause must be shown to support a filing under seal. See Kamakana v. City
and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
; Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,
‘ 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
° cause showing), and a specific showing of good cause or compelling reasons with proper
° evidentiary support and legal justification must be made with respect to Protected
’ Material that a party seeks to 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
'0 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
4 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
6 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, shall be filed.
Any application that seeks to file documents under seal in their entirety should include an
35 explanation of why redaction is not feasible.
4, DEFINITIONS
4.1 Action: This pending lawsuit.
4.2 Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
1 4.3 “CONFIDENTIAL” Information or Items: information (regardless of how it
2
is generated, stored or maintained) or tangible things that qualify for protection under
3
Federal Rule of Civil Procedure 26(c), and as stated above in the Good Cause Statement.
4
4.4 Counsel: Counsel of Record (as well as their support staff).
5
4.5 Designating Party: a Party or Non-Party that designates information or items
6
that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
7
4.6 Disclosure or Discovery Material: all items or information, regardless of the
8
medium or manner in which it is generated, stored, or maintained (including, among
9
other things, testimony, transcripts, and tangible things), that are produced or generated in
10
disclosures or responses to discovery.
11
4.7 Expert: a person with specialized knowledge or experience in a matter
12
pertinent to the litigation who has been retained by a Party or its counsel to serve as an
13
expert witness or as a consultant in this Action.
14
4.8 House Counsel: attorneys who are employees of a party to this Action.
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House Counsel does not include Outside Counsel of Record or any other outside counsel.
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4.9 Non-Party: any natural person, partnership, corporation, association or other
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legal entity not named as a Party to this action.
18
4.10 Outside Counsel of Record: attorneys who are not employees of a party to
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this Action but are retained to represent a party to this Action and have appeared in this
20
Action on behalf of that party or are affiliated with a law firm that has appeared on behalf
21
of that party, and includes support staff.
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4.11 Party: any party to this Action, including all of its officers, directors,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
24
support staffs).
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4.12 Producing Party: a Party or Non-Party that produces Disclosure or
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Discovery Material in this Action.
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4.13 Professional Vendors: persons or entities that provide litigation support
1 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
2
their employees and subcontractors.
3
4.14 Protected Material: any Disclosure or Discovery Material that is designated
4
as “CONFIDENTIAL.”
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4.15 Receiving Party: a Party that receives Disclosure or Discovery Material
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from a Producing Party.
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5. SCOPE
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The protections conferred by this Stipulation and Order cover not only Protected
9
Material (as defined above), but also (1) any information copied or extracted from
10
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
11
Material; and (3) any testimony, conversations, or presentations by Parties or their
12
Counsel that might reveal Protected Material. Any use of Protected Material at trial shall
13
be governed by the orders of the trial judge and other applicable authorities. This Order
14
does not govern the use of Protected Material at trial.
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6. DURATION
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Once a case proceeds to trial, information that was designated as
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CONFIDENTIAL or maintained pursuant to this protective order used or introduced as
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an exhibit at trial becomes public and will be presumptively available to all members of
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the public, including the press, unless compelling reasons supported by specific factual
20
findings to proceed otherwise are made to the trial judge in advance of the trial. See
21
Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
22
documents produced in discovery from “compelling reasons” standard when merits-
23
related documents are part of court record). Accordingly, the terms of this protective
24
order do not extend beyond the commencement of the trial.
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7. DESIGNATING PROTECTED MATERIAL
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7.1 Exercise of Restraint and Care in Designating Material for Protection. Each
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Party or Non-Party that designates information or items for protection under this Order
1 appropriate standards. The Designating Party must designate for protection only those
2
parts of material, documents, items or oral or written communications that qualify so that
3
other portions of the material, documents, items or communications for which protection
4
is not warranted are not swept unjustifiably within the ambit of this Order.
5
Mass, indiscriminate or routinized designations are prohibited. Designations that
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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
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to unnecessarily encumber the case development process or to impose unnecessary
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expenses and burdens on other parties) may expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it
10
designated for protection do not qualify for protection, that Designating Party must
11
promptly notify all other Parties that it is withdrawing the inapplicable designation.
12
7.2 Manner and Timing of Designations. Except as otherwise provided in this
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Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material that
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qualifies for protection under this Order must be clearly so designated before the material
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is disclosed or produced. Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic
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documents, but excluding transcripts of depositions or other pretrial or trial proceedings),
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that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
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“CONFIDENTIAL legend”), to each page that contains protected material. If only a
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portion of the material on a page qualifies for protection, the Producing Party also must
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clearly identify the protected portion(s) (e.g., by appropriate markings in the margins).
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A Party or Non-Party that makes original documents available for inspection need
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not designate them for protection until after the inspecting Party has indicated which
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documents it would like copied and produced. During the inspection and before the
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designation, all of the material made available for inspection shall be deemed
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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
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copied and produced, the Producing Party must determine which documents, or portions
1 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
2
that contains Protected Material. If only a portion of the material on a page qualifies for
3
protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
4
by making appropriate markings in the margins).
5
(b) for testimony given in depositions that the Designating Party identifies
6
the Disclosure or Discovery Material on the record, before the close of the deposition all
7
protected testimony.
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(c) for information produced in some form other than documentary and for
9
any other tangible items, that the Producing Party affix in a prominent place on the
10
exterior of the container or containers in which the information is stored the legend
11
“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,
12
the Producing Party, to the extent practicable, shall identify the protected portion(s).
13
7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
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to designate qualified information or items does not, standing alone, waive the
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Designating Party’s right to secure protection under this Order for such material. Upon
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timely correction of a designation, the Receiving Party must make reasonable efforts to
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assure that the material is treated in accordance with the provisions of this Order.
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1 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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8.1. Timing of Challenges. Any Party or Non-Party may challenge a designation
3
of confidentiality at any time that is consistent with the Court’s Scheduling Order.
4
8.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
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process under Local Rule 37-1 et seq.
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8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint
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stipulation pursuant to Local Rule 37-2.
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8.4 The burden of persuasion in any such challenge proceeding shall be on the
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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to
10
harass or impose unnecessary expenses and burdens on other parties) may expose the
11
Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
12
the confidentiality designation, all parties shall continue to afford the material in question
13
the level of protection to which it is entitled under the Producing Party’s designation until
14
the Court rules on the challenge.
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9. ACCESS TO AND USE OF PROTECTED MATERIAL
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9.1 Basic Principles. A Receiving Party may use Protected Material that is
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disclosed or produced by another Party or by a Non-Party in connection with this Action
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only for prosecuting, defending or attempting to settle this Action. Such Protected
19
Material may be disclosed only to the categories of persons and under the conditions
20
described in this Order. When the Action has been terminated, a Receiving Party must
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comply with the provisions of section 15 below (FINAL DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a
23
location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
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9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
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ordered by the court or permitted in writing by the Designating Party, a Receiving Party
27
may disclose any information or item designated “CONFIDENTIAL” only to:
1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
2
as employees of said Outside Counsel of Record to whom it is reasonably necessary to
3
disclose the information for this Action;
4
(b) the officers, directors, and employees (including House Counsel) of the
5
Receiving Party to whom disclosure is reasonably necessary for this Action;
6
(c) Experts (as defined in this Order) of the Receiving Party to whom
7
disclosure is reasonably necessary for this Action and who have signed the
8
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d) the court and its personnel;
10
(e) court reporters and their staff;
11
(f) professional jury or trial consultants, mock jurors, and Professional
12
Vendors to whom disclosure is reasonably necessary for this Action and who have signed
13
the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
14
(g) the author or recipient of a document containing the information or a
15
custodian or other person who otherwise possessed or knew the information;
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(h) during their depositions, witnesses, and attorneys for witnesses, in the
17
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
18
requests that the witness sign the form attached as Exhibit A hereto; and (2) they will not
19
be permitted to keep any confidential information unless they sign the “Acknowledgment
20
and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
21
Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to
22
depositions that reveal Protected Material may be separately bound by the court reporter
23
and may not be disclosed to anyone except as permitted under this Order; and
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(i) any mediators or settlement officers and their supporting personnel,
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mutually agreed upon by any of the parties engaged in settlement discussions.
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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
2
Protected Material to any person or in any circumstance not authorized under this
3
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
4
the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
5
all unauthorized copies of the Protected Material, (c) inform the person or persons to
6
whom unauthorized disclosures were made of all the terms of this Order, and (d) request
7
such person or persons to execute the “Acknowledgment an Agreement to Be Bound”
8
attached hereto as Exhibit A.
9
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
10 PROTECTED MATERIAL
11
When a Producing Party gives notice to Receiving Parties that certain inadvertently
12
produced material is subject to a claim of privilege or other protection, the obligations of
13
the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
14
This provision is not intended to modify whatever procedure may be established in an e-
15
discovery order that provides for production without prior privilege review. Pursuant to
16
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the
17
effect of disclosure of a communication or information covered by the attorney-client
18
privilege or work product protection, the parties may incorporate their agreement in the
19
stipulated protective order submitted to the court.
20
12. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
21
PRODUCED IN THIS LITIGATION
22
(a) The terms of this Order are applicable to information produced by a Non-
23
Party in this Action and designated as “CONFIDENTIAL.” Such information produced
24
by Non-Parties in connection with this litigation is protected by the remedies and relief
25
provided by this Order. Nothing in these provisions should be construed as prohibiting a
26
Non-Party from seeking additional protections.
27
(b) In the event that a Party is required, by a valid discovery request, to produce
1 agreement with the Non-Party not to produce the Non-Party’s confidential information,
2
then the Party shall:
3
(1) promptly notify in writing the Requesting Party and the Non-Party
4
that some or all of the information requested is subject to a confidentiality agreement
5
with a Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated
7
Protective Order in this Action, the relevant discovery request(s), and a reasonably
8
specific description of the information requested; and
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(3) make the information requested available for inspection by the Non-
10
Party, if requested.
11
(c) If the Non-Party fails to seek a protective order from this court within 14
12
days of receiving the notice and accompanying information, the Receiving Party may
13
produce the Non-Party’s confidential information responsive to the discovery request. If
14
the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
15
information in its possession or control that is subject to the confidentiality agreement
16
with the Non-Party before a determination by the court. Absent a court order to the
17
contrary, the Non-Party shall bear the burden and expense of seeking protection in this
18
court of its Protected Material.
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13. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
21
Protected Material to any person or in any circumstance not authorized under this
22
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
23
the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
24
all unauthorized copies of the Protected Material, (c) inform the person or persons to
25
whom unauthorized disclosures were made of all the terms of this Order, and (d) request
26
such person or persons to execute the “Acknowledgment an Agreement to Be Bound”
27
attached hereto as Exhibit A.
1 14. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
2
IN OTHER LITIGATION
3
If a Party is served with a subpoena or a court order issued in other litigation that
4
compels disclosure of any information or items designated in this Action as
5
“CONFIDENTIAL,” that Party must:
6
(a) promptly notify in writing the Designating Party. Such notification shall
7
include a copy of the subpoena or court order;
8
(b) promptly notify in writing the party who caused the subpoena or order to
9
issue in the other litigation that some or all of the material covered by the subpoena or
10
order is subject to this Protective Order. Such notification shall include a copy of this
11
Stipulated Protective Order; and
12
(c) cooperate with respect to all reasonable procedures sought to be pursued
13
by the Designating Party whose Protected Material may be affected. If the Designating
14
Party timely seeks a protective order, the Party served with the subpoena or court order
15
shall not produce any information designated in this action as “CONFIDENTIAL” before
16
a determination by the court from which the subpoena or order issued, unless the Party
17
has obtained the Designating Party’s permission. The Designating Party shall bear the
18
burden and expense of seeking protection in that court of its confidential material and
19
nothing in these provisions should be construed as authorizing or encouraging a
20
Receiving Party in this Action to disobey a lawful directive from another court.
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15. MISCELLANEOUS
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15.1 Right to Further Relief. Nothing in this Order abridges the right of any
23
person to seek its modification by the Court in the future.
24
15.2 Right to Assert Other Objections. By stipulating to the entry of this
25
Protective Order, no Party waives any right it otherwise would have to object to
26
disclosing or producing any information or item on any ground not addressed in this
27
Stipulated Protective Order. Similarly, no Party waives any right to object on any ground
1 15.3 Filing Protected Material. A Party that seeks to file under seal any
2
Protected Material must comply with Local Civil Rule 79-5. Protected Material may only
3
be filed under seal pursuant to a court order authorizing the sealing of the specific
4
Protected Material. If a Party’s request to file Protected Material under seal is denied by
5
the court, then the Receiving Party may file the information in the public record unless
6
otherwise instructed by the court.
7
16. FINAL DISPOSITION
8
After the final disposition of this Action, as defined in paragraph 6, within 60 days
9
of a written request by the Designating Party, each Receiving Party must return all
10
Protected Material to the Producing Party or destroy such material. As used in this
11
subdivision, “all Protected Material” includes all copies, abstracts, compilations,
12
summaries, and any other format reproducing or capturing any of the Protected Material.
13
Whether the Protected Material is returned or destroyed, the Receiving Party must submit
14
a written certification to the Producing Party (and, if not the same person or entity, to the
15
Designating Party) by the 60-day deadline that (1) identifies (by category, where
16
appropriate) all the Protected Material that was returned or destroyed and (2) affirms that
17
the Receiving Party has not retained any copies, abstracts, compilations, summaries or
18
any other format reproducing or capturing any of the Protected Material. Notwithstanding
19
this provision, Counsel are entitled to retain an archival copy of their entire file. Any such
20
archival copies that contain or constitute Protected Material remain subject to this
21
Protective Order as set forth in Section 6 (DURATION).
22
17. VIOLATION
23
Any violation of this Order may be punished by appropriate measures including,
24
without limitation, contempt proceedings and/or monetary sanctions.
25
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
26
27 DATED: _J_u_ly_ _3_1_, _2_0_2_5______ ________________________________
JOHN D. EARLY
United States Magistrate Judge
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 penalty of perjury that I have read in its entirety
5
and understand the Stipulated Protective Order that was issued by the United States
6
District Court for the Central District of California on July 31, 2025, in the case of City of
7
Anaheim v. Scottsdale Ins. Co. and Nationwide Mutual Ins. Co., Case No. 8:24-cv-
8
01916-FWS-JDE.
9
I agree to comply with and to be bound by all the terms of this Stipulated
10
Protective Order and I understand and acknowledge that failure to so comply could
11
expose me to sanctions and punishment in the nature of contempt. I solemnly promise
12
that I will not disclose in any manner any information or item that is subject to this
13
Stipulated 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 Court for
16
the Central District of California for the purpose of enforcing this Stipulated Protective
17
Order, even if such proceedings occur after termination of the action.
18
I hereby appoint __________________________ [print or type full name] of
19
_______________________________________ [print or type full address and telephone
20
number] as my California agent for service of process in connection with this action or
21
any proceedings related to enforcement of this Stipulated Protective Order.
22
Date:__________________________
23
City and State where sworn and signed:________________________________________
24
25
Printed name: _____________________________________________
26
Signature: ________________________________________________
27