Opinion

Corey Roche v. SLM Corporation

Court
District Court, C.D. California
Filed
Mar 14, 2022
Cited by
0 cases
Authority
More cited than 16.3%

even stipulated protective orders require good cause 14 showing

How later courts described this case

  • even stipulated protective orders require good cause 14 showing

Written by the judges who cited it.

The opinion

Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 1 of 15 Page ID #:211

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 COREY ROCHE, ) Case No. 8:21-cv-00985-CJC-JDE

)

11 )

Plaintiff, ) STIPULATION AND

12 ) PROPOSED PROTECTIVE

13 vs. ) ) ORDER

)

14 SLM CORPORATION D/B/A SALLIE )

MAE BANK, EXPERIAN )

15 )

INFORMATION SOLUTIONS, INC., )

16 AND EQUIFAX INFORMATION )

SERVICES, LLC, )

17 )

)

18 Defendants. )

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Based on the parties’ Stipulation (Dkt. 37) and for good cause shown,

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the Court finds and orders as follows.

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1. PURPOSES AND LIMITATIONS

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

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proprietary or private information for which special protection from public

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

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

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

28 this Order does not confer blanket protections on all disclosures or responses to

Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 2 of 15 Page ID #:212

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discovery and that the protection it affords from public disclosure and use

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extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles.

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2. GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, customer and pricing lists and

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other valuable research, development, commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and

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from use for any purpose other than prosecution of this action is warranted. Such

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confidential and proprietary materials and information consist of, among other

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things, confidential business or financial information, information regarding

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confidential business practices, or other confidential research, development, or

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commercial information (including information implicating privacy rights of

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third parties), information otherwise generally unavailable to the public, or

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which may be privileged or otherwise protected from disclosure under state or

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

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

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over confidentiality of discovery materials, to adequately protect information

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19 the parties are entitled to keep confidential, to ensure that the parties are

20 permitted reasonable necessary uses of such material in preparation for and in

21 the conduct of trial, to address their handling at the end of the litigation, and

22 serve the ends of justice, a protective order for such information is justified in

23 this matter. It is the intent of the parties that information will not be designated

24 as confidential for tactical reasons and that nothing be so designated without a

25 good faith belief that it has been maintained in a confidential, non-public

26 manner, and there is good cause why it should not be part of the public record

27 of this case.

28 / / /

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3. ACKNOWLEDGMENT OF UNDER SEAL FILING

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PROCEDURE

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

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this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Local Civil Rule 79-5 sets forth the procedures that must

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be followed and the standards that will be applied when a party seeks permission

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from the court to file material under seal. There is a strong presumption that the

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public has a right of access to judicial proceedings and records in civil cases. In

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connection with non-dispositive motions, good cause must be shown to support

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a filing under seal. See Kamakana v. City and County of Honolulu, 447 F.3d

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1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-

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11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577

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(E.D. Wis. 1999) (even stipulated protective orders require good cause

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showing), and a specific showing of good cause or compelling reasons with

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proper evidentiary support and legal justification, must be made with respect to

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Protected Material that a party seeks to file under seal. The parties’ mere

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designation of Disclosure or Discovery Material as CONFIDENTIAL does

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19 not— without the submission of competent evidence by declaration, establishing

20 that the material sought to be filed under seal qualifies as confidential,

21 privileged, or otherwise protectable—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,

24 and 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

27 filed or introduced under seal, the party seeking protection must articulate

28 compelling reasons, supported by specific facts and legal justification, for the

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requested sealing order. Again, competent evidence supporting the application

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to file documents under seal must be provided by declaration.

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Any document that is not confidential, privileged, or otherwise

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protectable in its entirety will not be filed under seal if the confidential portions

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can be redacted. If documents can be redacted, then a redacted version for public

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viewing, omitting only the confidential, privileged, or otherwise protectable

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portions of the document, shall be filed. Any application that seeks to file

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documents under seal in their entirety should include an explanation of why

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redaction is not feasible.

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4. DEFINITIONS

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4.1 Action: Roche v. Sallie Mae Bank, Experian Information Solutions, Inc.,

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and Equifax Information Services, LLC; case number 8:21-00985-CJC-JDE

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

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designation of information or items under this Order.

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4.3 “CONFIDENTIAL” Information or Items: information (regardless

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

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

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19 in the Good Cause Statement.

20 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as

21 their support staff).

22 4.5 Designating Party: a Party or Non-Party that designates

23 information or items that it produces in disclosures or in responses to discovery

24 as “CONFIDENTIAL.”

25 4.6 Disclosure or Discovery Material: all items or information,

26 regardless of the medium or manner in which it is generated, stored, or

27 maintained (including, among other things, testimony, transcripts, and tangible

28 things), that are produced or generated in disclosures or responses to discovery.

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

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

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to serve as an expert witness or as a consultant in this Action.

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4.8 House Counsel: attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any

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other outside counsel.

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

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

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

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

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

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that has appeared on behalf 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

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their 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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19 4.13 Professional Vendors: persons or entities that provide litigation

20 support services (e.g., photocopying, videotaping, translating, preparing exhibits

21 or demonstrations, and organizing, storing, or retrieving data in any form or

22 medium) and their employees and subcontractors.

23 4.14 Protected Material: any Disclosure or Discovery Material that is

24 designated as “CONFIDENTIAL.”

25 4.15 Receiving Party: a Party that receives Disclosure or Discovery

26 Material 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

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

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

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

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

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

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

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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

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

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available to all members of the public, including the press, unless compelling

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reasons supported by specific factual findings to proceed otherwise are made to

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

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(distinguishing “good cause” showing for sealing documents produced in

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19 discovery from “compelling reasons” standard when merits-related documents

20 are part of court record). Accordingly, the terms of this protective order do not

21 extend beyond the commencement of the trial.

22 7. DESIGNATING PROTECTED MATERIAL

23 7.1 Exercise of Restraint and Care in Designating Material for

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

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

26 designation to specific material that qualifies under the appropriate standards.

27 The Designating Party must designate for protection only those parts of

28 material, documents, items or oral or written communications that qualify so

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Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page 7 of 15 Page ID #:217

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that other portions of the material, documents, items or communications for

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which protection is not warranted are not swept unjustifiably within the ambit

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of this Order.

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Mass, indiscriminate or routinized designations are prohibited.

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

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an improper purpose (e.g., to unnecessarily encumber the case development

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process or to impose unnecessary expenses and burdens on other parties) may

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expose the Designating Party to sanctions.

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

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that it designated for protection do not qualify for protection, that Designating

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Party must promptly notify all other Parties that it is withdrawing the

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inapplicable designation.

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7.2 Manner and Timing of Designations. Except as otherwise provided

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in this Order, or as otherwise stipulated or ordered, Disclosure of Discovery

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Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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

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

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

22 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page

23 that contains protected material. If only a portion of the material on a page

24 qualifies for protection, the Producing Party also must clearly identify the

25 protected portion(s) (e.g., by making appropriate markings in the margins).

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

27 inspection need not designate them for protection until after the inspecting Party

28 has indicated which documents it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection

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under this Order. Then, before producing the specified documents, the

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Producing Party must affix the “CONFIDENTIAL legend” to each page that

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contains Protected Material. If only a portion of the material on a page qualifies

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for protection, the Producing Party also must clearly identify the protected

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

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

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

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the deposition all protected testimony.

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

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and for any other tangible items, that the Producing Party affix in a prominent

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place on the exterior of the container or containers in which the information is

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

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information warrants protection, the Producing Party, to the extent practicable,

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19 shall identify the protected portion(s).

20 7.3 Inadvertent Failures to Designate. If timely corrected, an

21 inadvertent failure to designate qualified information or items does not, standing

22 alone, waive the Designating Party’s right to secure protection under this Order

23 for such material. Upon timely correction of a designation, the Receiving Party

24 must make reasonable efforts to assure that the material is treated in accordance

25 with the provisions of this Order.

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8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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

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Scheduling Order.

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

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resolution 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

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joint stipulation pursuant to Local Rule 37-2.

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

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

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

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

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

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

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

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challenge.

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9. ACCESS TO AND USE OF PROTECTED MATERIAL

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19 9.1 Basic Principles. A Receiving Party may use Protected Material that

20 is disclosed or produced by another Party or by a Non-Party in connection with

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

22 Such Protected Material may be disclosed only to the categories of persons and

23 under the conditions described in this Order. When the Action has been

24 terminated, a Receiving Party must comply with the provisions of section 15

25 below (FINAL DISPOSITION).

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

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

28 persons authorized under this Order.

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9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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

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

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necessary to disclose the information for this Action;

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

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of the Receiving Party to whom disclosure is reasonably necessary for this

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Action;

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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

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“Acknowledgment and Agreement to Be Bound” (Dkt. 38, “Exhibit A”);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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19 and who have signed the “Acknowledgment and Agreement to Be Bound”

20 (Exhibit A);

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

22 or a custodian or other person who otherwise possessed or knew the

23 information;

24 (h) during their depositions, witnesses, and attorneys for witnesses,

25 in the Action to whom disclosure is reasonably necessary provided: (1) the

26 deposing party requests that the witness sign the form attached as Exhibit A

27 hereto; and (2) they will not be permitted to keep any confidential information

28 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A), unless otherwise agreed by the Designating Party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material may be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this Stipulated Protective

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Order; and

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(i) any mediators or settlement officers and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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litigation that compels disclosure of any information or items designated in this

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Action as “CONFIDENTIAL,” that Party must:

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

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notification shall include a copy of the subpoena or court order;

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

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

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

20 include a copy of this Stipulated Protective Order; and

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

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

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

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

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

26 the subpoena or order issued, unless the Party has obtained the Designating

27 Party’s permission. The Designating Party shall bear the burden and expense of

28 seeking protection in that court of its confidential material and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party

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in this Action to disobey a lawful directive from another court.

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

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BE PRODUCED IN THIS LITIGATION

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

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

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information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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

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

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Party is subject to an agreement with the Non-Party not to produce the Non-

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Party’s confidential information, then the Party shall:

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

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

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agreement with a Non-Party;

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

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

21 reasonably specific description of the information requested; and

22 (3) make the information requested available for inspection by the

23 Non-Party, if requested.

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

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

26 Receiving Party may produce the Non-Party’s confidential information

27 responsive to the discovery request. If the Non-Party timely seeks a protective

28 order, the Receiving Party shall not produce any information in its possession

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or control that is subject to the confidentiality agreement with the Non-Party

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before a determination by the court. Absent a court order to the contrary, the

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Non-Party shall bear the burden and expense of seeking protection in this court

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of its Protected Material.

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12. UNAUTHORIZED DISCLOSURE OF PROTECTED

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MATERIAL

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

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disclosed Protected Material to any person or in any circumstance not

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authorized under this Stipulated Protective Order, the Receiving Party must

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immediately (a) notify in writing the Designating Party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (d) request such person

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or persons to execute the “Acknowledgment an Agreement to Be Bound”

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attached hereto as Exhibit A.

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13. INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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19 When a Producing Party gives notice to Receiving Parties that certain

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

21 protection, the obligations of the Receiving Parties are those set forth in Federal

22 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

23 whatever procedure may be established in an e-discovery order that provides for

24 production without prior privilege review. Pursuant to Federal Rule of Evidence

25 502(d) and (e), insofar as the parties reach an agreement on the effect of

26 disclosure of a communication or information covered by the attorney-client

27 privilege or work product protection, the parties may incorporate their

28 agreement in the stipulated protective order submitted to the court.

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14. MISCELLANEOUS

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14.1 Right to Further Relief. Nothing in this Order abridges the right of

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any person to seek its modification by the Court in the future.

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14.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order, no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed

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in this Stipulated Protective Order. Similarly, no Party waives any right to object

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on any ground to use in evidence of any of the material covered by this

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Protective Order.

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

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

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

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

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under seal is denied by the court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the court.

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15. FINAL DISPOSITION

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

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19 60 days of a written request by the Designating Party, each Receiving Party must

20 return all Protected Material to the Producing Party or destroy such material.

21 As used in this subdivision, “all Protected Material” includes all copies,

22 abstracts, compilations, summaries, and any other format reproducing or

23 capturing any of the Protected Material. Whether the Protected Material is

24 returned or destroyed, the Receiving Party must submit a written certification to

25 the Producing Party (and, if not the same person or entity, to the Designating

26 Party) by the 60-day deadline that (1) identifies (by category, where appropriate)

27 all the Protected Material that was returned or destroyed and (2) affirms that the

28 Receiving Party has not retained any copies, abstracts, compilations, summaries

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Case 8:21-cv-00985-CJC-JDE Document 39 Filed 03/14/22 Page15o0f15 Page ID #:245

I or any other format reproducing or capturing any of the Protected Material.

2 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 work product, even if such

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

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

9 in Section 6 (DURATION).

10 16. VIOLATION

Any violation of this Order may be punished by appropriate measures

D including, without limitation, contempt proceedings and/or monetary

13 || Sanctions.

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Is FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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17 || DATED: March 14, 2022

18 je de

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20 jon D. EARLY :

1 nited States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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