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. )
19
Based on the parties’ Stipulation (Dkt. 37) and for good cause shown,
20
the Court finds and orders as follows.
21
1. PURPOSES AND LIMITATIONS
22
Discovery in this action is likely to involve production of confidential,
23
proprietary or private information for which special protection from public
24
disclosure and from use for any purpose other than pursuing this litigation may
25
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
2
extends only to the limited information or items that are entitled to confidential
3
treatment under the applicable legal principles.
4
2. GOOD CAUSE STATEMENT
5
This action is likely to involve trade secrets, customer and pricing lists and
6
other valuable research, development, commercial, financial, technical and/or
7
proprietary information for which special protection from public disclosure and
8
from use for any purpose other than prosecution of this action is warranted. Such
9
confidential and proprietary materials and information consist of, among other
10
things, confidential business or financial information, information regarding
11
confidential business practices, or other confidential research, development, or
12
commercial information (including information implicating privacy rights of
13
third parties), information otherwise generally unavailable to the public, or
14
which may be privileged or otherwise protected from disclosure under state or
15
federal statutes, court rules, case decisions, or common law. Accordingly, to
16
expedite the flow of information, to facilitate the prompt resolution of disputes
17
over confidentiality of discovery materials, to adequately protect information
18
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 / / /
2
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3. ACKNOWLEDGMENT OF UNDER SEAL FILING
2
PROCEDURE
3
The parties further acknowledge, as set forth in Section 14.3, below, that
4
this Stipulated Protective Order does not entitle them to file confidential
5
information under seal; Local Civil Rule 79-5 sets forth the procedures that must
6
be followed and the standards that will be applied when a party seeks permission
7
from the court to file material under seal. There is a strong presumption that the
8
public has a right of access to judicial proceedings and records in civil cases. In
9
connection with non-dispositive motions, good cause must be shown to support
10
a filing under seal. See Kamakana v. City and County of Honolulu, 447 F.3d
11
1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-
12
11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577
13
(E.D. Wis. 1999) (even stipulated protective orders require good cause
14
showing), and a specific showing of good cause or compelling reasons with
15
proper evidentiary support and legal justification, must be made with respect to
16
Protected Material that a party seeks to file under seal. The parties’ mere
17
designation of Disclosure or Discovery Material as CONFIDENTIAL does
18
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
3
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requested sealing order. Again, competent evidence supporting the application
2
to file documents under seal must be provided by declaration.
3
Any document that is not confidential, privileged, or otherwise
4
protectable in its entirety will not be filed under seal if the confidential portions
5
can be redacted. If documents can be redacted, then a redacted version for public
6
viewing, omitting only the confidential, privileged, or otherwise protectable
7
portions of the document, shall be filed. Any application that seeks to file
8
documents under seal in their entirety should include an explanation of why
9
redaction is not feasible.
10
4. DEFINITIONS
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4.1 Action: Roche v. Sallie Mae Bank, Experian Information Solutions, Inc.,
12
and Equifax Information Services, LLC; case number 8:21-00985-CJC-JDE
13
4.2 Challenging Party: a Party or Non-Party that challenges the
14
designation of information or items under this Order.
15
4.3 “CONFIDENTIAL” Information or Items: information (regardless
16
of how it is generated, stored or maintained) or tangible things that qualify for
17
protection under Federal Rule of Civil Procedure 26(c), and as specified above
18
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.
4
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4.7 Expert: a person with specialized knowledge or experience in a
2
matter pertinent to the litigation who has been retained by a Party or its counsel
3
to serve as an expert witness or as a consultant in this Action.
4
4.8 House Counsel: attorneys who are employees of a party to this
5
Action. House Counsel does not include Outside Counsel of Record or any
6
other outside counsel.
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4.9 Non-Party: any natural person, partnership, corporation,
8
association or other legal entity not named as a Party to this action.
9
4.10 Outside Counsel of Record: attorneys who are not employees of a
10
party to this Action but are retained to represent a party to this Action and have
11
appeared in this Action on behalf of that party or are affiliated with a law firm
12
that has appeared on behalf of that party, and includes support staff.
13
4.11 Party: any party to this Action, including all of its officers, directors,
14
employees, consultants, retained experts, and Outside Counsel of Record (and
15
their support staffs).
16
4.12 Producing Party: a Party or Non-Party that produces Disclosure or
17
Discovery Material in this Action.
18
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.
27
28
5
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5. SCOPE
2
The protections conferred by this Stipulation and Order cover not only
3
Protected Material (as defined above), but also (1) any information copied or
4
extracted from Protected Material; (2) all copies, excerpts, summaries, or
5
compilations of Protected Material; and (3) any testimony, conversations, or
6
presentations by Parties or their Counsel that might reveal Protected Material.
7
Any use of Protected Material at trial shall be governed by the orders of
8
the trial judge and other applicable authorities. This Order does not govern the
9
use of Protected Material at trial.
10
6. DURATION
11
Once a case proceeds to trial, information that was designated as
12
CONFIDENTIAL or maintained pursuant to this protective order used or
13
introduced as an exhibit at trial becomes public and will be presumptively
14
available to all members of the public, including the press, unless compelling
15
reasons supported by specific factual findings to proceed otherwise are made to
16
the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
17
(distinguishing “good cause” showing for sealing documents produced in
18
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
6
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that other portions of the material, documents, items or communications for
2
which protection is not warranted are not swept unjustifiably within the ambit
3
of this Order.
4
Mass, indiscriminate or routinized designations are prohibited.
5
Designations that are shown to be clearly unjustified or that have been made for
6
an improper purpose (e.g., to unnecessarily encumber the case development
7
process or to impose unnecessary expenses and burdens on other parties) may
8
expose the Designating Party to sanctions.
9
If it comes to a Designating Party’s attention that information or items
10
that it designated for protection do not qualify for protection, that Designating
11
Party must promptly notify all other Parties that it is withdrawing the
12
inapplicable designation.
13
7.2 Manner and Timing of Designations. Except as otherwise provided
14
in this Order, or as otherwise stipulated or ordered, Disclosure of Discovery
15
Material that qualifies for protection under this Order must be clearly so
16
designated before the material is disclosed or produced.
17
Designation in conformity with this Order requires:
18
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
7
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1
inspection and before the designation, all of the material made available for
2
inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
3
identified the documents it wants copied and produced, the Producing Party
4
must determine which documents, or portions thereof, qualify for protection
5
under this Order. Then, before producing the specified documents, the
6
Producing Party must affix the “CONFIDENTIAL legend” to each page that
7
contains Protected Material. If only a portion of the material on a page qualifies
8
for protection, the Producing Party also must clearly identify the protected
9
portion(s) (e.g., by making appropriate markings in the margins).
10
(b) for testimony given in depositions that the Designating Party
11
identifies the Disclosure or Discovery Material on the record, before the close of
12
the deposition all protected testimony.
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(c) for information produced in some form other than documentary
14
and for any other tangible items, that the Producing Party affix in a prominent
15
place on the exterior of the container or containers in which the information is
16
stored the legend “CONFIDENTIAL.” If only a portion or portions of the
17
information warrants protection, the Producing Party, to the extent practicable,
18
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.
26
27
28
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8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2
8.1. Timing of Challenges. Any Party or Non-Party may challenge a
3
designation of confidentiality at any time that is consistent with the Court’s
4
Scheduling Order.
5
8.2 Meet and Confer. The Challenging Party shall initiate the dispute
6
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
8
joint stipulation pursuant to Local Rule 37-2.
9
8.4 The burden of persuasion in any such challenge proceeding shall be
10
on the Designating Party. Frivolous challenges, and those made for an improper
11
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
12
parties) may expose the Challenging Party to sanctions. Unless the Designating
13
Party has waived or withdrawn the confidentiality designation, all parties shall
14
continue to afford the material in question the level of protection to which it is
15
entitled under the Producing Party’s designation until the Court rules on the
16
challenge.
17
9. ACCESS TO AND USE OF PROTECTED MATERIAL
18
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
2
otherwise ordered by the court or permitted in writing by the Designating Party,
3
a Receiving Party may disclose any information or item designated
4
“CONFIDENTIAL” only to:
5
(a) the Receiving Party’s Outside Counsel of Record in this Action,
6
as well as employees of said Outside Counsel of Record to whom it is reasonably
7
necessary to disclose the information for this Action;
8
(b) the officers, directors, and employees (including House Counsel)
9
of the Receiving Party to whom disclosure is reasonably necessary for this
10
Action;
11
(c) Experts (as defined in this Order) of the Receiving Party to whom
12
disclosure is reasonably necessary for this Action and who have signed the
13
“Acknowledgment and Agreement to Be Bound” (Dkt. 38, “Exhibit A”);
14
(d) the court and its personnel;
15
(e) court reporters and their staff;
16
(f) professional jury or trial consultants, mock jurors, and
17
Professional Vendors to whom disclosure is reasonably necessary for this Action
18
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
10
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A), unless otherwise agreed by the Designating Party or ordered by the court.
2
Pages of transcribed deposition testimony or exhibits to depositions that reveal
3
Protected Material may be separately bound by the court reporter and may not
4
be disclosed to anyone except as permitted under this Stipulated Protective
5
Order; and
6
(i) any mediators or settlement officers and their supporting
7
personnel, mutually agreed upon by any of the parties engaged in settlement
8
discussions.
9
10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
10
PRODUCED IN OTHER LITIGATION
11
If a Party is served with a subpoena or a court order issued in other
12
litigation that compels disclosure of any information or items designated in this
13
Action as “CONFIDENTIAL,” that Party must:
14
(a) promptly notify in writing the Designating Party. Such
15
notification shall include a copy of the subpoena or court order;
16
(b) promptly notify in writing the party who caused the subpoena or
17
order to issue in the other litigation that some or all of the material covered by
18
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
11
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1
provisions should be construed as authorizing or encouraging a Receiving Party
2
in this Action to disobey a lawful directive from another court.
3
11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
4
BE PRODUCED IN THIS LITIGATION
5
(a) The terms of this Order are applicable to information produced
6
by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
7
information produced by Non-Parties in connection with this litigation is
8
protected by the remedies and relief provided by this Order. Nothing in these
9
provisions should be construed as prohibiting a Non-Party from seeking
10
additional protections.
11
(b) In the event that a Party is required, by a valid discovery request,
12
to produce a Non-Party’s confidential information in its possession, and the
13
Party is subject to an agreement with the Non-Party not to produce the Non-
14
Party’s confidential information, then the Party shall:
15
(1) promptly notify in writing the Requesting Party and the Non-
16
Party that some or all of the information requested is subject to a confidentiality
17
agreement with a Non-Party;
18
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
12
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1
or control that is subject to the confidentiality agreement with the Non-Party
2
before a determination by the court. Absent a court order to the contrary, the
3
Non-Party shall bear the burden and expense of seeking protection in this court
4
of its Protected Material.
5
12. UNAUTHORIZED DISCLOSURE OF PROTECTED
6
MATERIAL
7
If a Receiving Party learns that, by inadvertence or otherwise, it has
8
disclosed Protected Material to any person or in any circumstance not
9
authorized under this Stipulated Protective Order, the Receiving Party must
10
immediately (a) notify in writing the Designating Party of the unauthorized
11
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
12
Protected Material, (c) inform the person or persons to whom unauthorized
13
disclosures were made of all the terms of this Order, and (d) request such person
14
or persons to execute the “Acknowledgment an Agreement to Be Bound”
15
attached hereto as Exhibit A.
16
13. INADVERTENT PRODUCTION OF PRIVILEGED OR
17
OTHERWISE PROTECTED MATERIAL
18
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.
13
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1
14. MISCELLANEOUS
2
14.1 Right to Further Relief. Nothing in this Order abridges the right of
3
any person to seek its modification by the Court in the future.
4
14.2 Right to Assert Other Objections. By stipulating to the entry of this
5
Protective Order, no Party waives any right it otherwise would have to object to
6
disclosing or producing any information or item on any ground not addressed
7
in this Stipulated Protective Order. Similarly, no Party waives any right to object
8
on any ground to use in evidence of any of the material covered by this
9
Protective Order.
10
14.3 Filing Protected Material. A Party that seeks to file under seal any
11
Protected Material must comply with Local Civil Rule 79-5. Protected Material
12
may only be filed under seal pursuant to a court order authorizing the sealing of
13
the specific Protected Material. If a Party’s request to file Protected Material
14
under seal is denied by the court, then the Receiving Party may file the
15
information in the public record unless otherwise instructed by the court.
16
15. FINAL DISPOSITION
17
After the final disposition of this Action, as defined in paragraph 6, within
18
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
14
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.
14
Is FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
16
17 || DATED: March 14, 2022
18 je de
19
20 jon D. EARLY :
1 nited States Magistrate Judge
22
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25
26
27
28
15