distinguishing “good cause” showing for sealing documents produced in 12 discovery from “compelling reasons” standard when merits-related documents are 13 part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing documents produced in 12 discovery from “compelling reasons” standard when merits-related documents are 13 part of court record
Written by the judges who cited it.
The opinion
Case 2:22-cv-00293-FLA-MAA Document 60 Filed 06/14/22 Page 1 of 17 Page ID #:440
BLAKELEY LC
1
David M. Mannion (Bar No. 288627)
2 DMannion@BlakeleyLC.com
530 Technology Drive, Suite 100
3
Irvine, California 92618
4 Telephone: (949) 260-0611
5
Attorneys for Plaintiff Beacon Sales
6 Acquisition, Inc.
7
UNITED STATES DISTRICT COURT
8
CENTRAL DISTRICT OF CALIFORNIA
9
10 BEACON SALES ACQUISITION, INC., Case No. 2:22−cv−00293 FLA (MAAx)
11
Plaintiff,
12 STIPULATED PROTECTIVE
v. ORDER
13
14 NEXUS ENERGY SYSTEMS INC.,
15
Defendant.
16
17
18 NEXUS ENERGY SYSTEMS INC.,
19
Counterclaim-Plaintiff,
20
21 v.
22 BEACON SALES ACQUISITION, INC.,
23
Counterclaim-Defendant.
24
25
26
27
28
STIPULATED PROTECTIVE ORDER
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1 1. PURPOSES AND LIMITATIONS
2 Discovery in this action is likely to involve production of confidential,
3 proprietary, or private information for which special protection from public disclosure
4 and from use for any purpose other than prosecuting this litigation may be warranted.
5 Accordingly, the parties hereby stipulate to and petition the Court to enter the
6 following Stipulated Protective Order. The parties acknowledge that this Stipulated
7 Protective Order does not confer blanket protections on all disclosures or responses to
8 discovery and that the protection it affords from public disclosure and use extends
9 only to the limited information or items that are entitled to confidential treatment
10 under the applicable legal principles. The parties further acknowledge, as set forth in
11 Section 13.3 below, that this Stipulated Protective Order does not entitle
12 them to file confidential information under seal; Local Rule 79-5 sets forth the
13 procedures that must be followed and the standards that will be applied when a party
14 seeks permission from the Court to file material under seal.
15 2. GOOD CAUSE STATEMENT
16 This action is likely to involve customer and pricing lists and other financial
17 information for which special protection from public disclosure and from use for any
18 purpose other than prosecution of this action is warranted. Such confidential and
19 proprietary materials and information consist of, among other things, confidential
20 business or financial information, information regarding confidential business
21 practices, or other confidential commercial information (including information
22 implicating privacy rights of third parties), information otherwise generally
23 unavailable to the public, or which may be privileged or otherwise protected from
24 disclosure under state or federal statutes, court rules, case decisions, or common law.
25 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of
26 disputes over confidentiality of discovery materials, to adequately protect information
27 the parties are entitled to keep confidential, to ensure that the parties are permitted
28 reasonable necessary uses of such material in preparation for and in the conduct of
1
STIPULATED PROTECTIVE ORDER
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1 trial, to address their handling at the end of the litigation, and to serve the ends of
2 justice, a protective order for such information is justified in this matter. It is the
3 intent of the parties that information will not be designated as confidential for tactical
4 reasons and that nothing be so designated without a good faith belief that it has been
5 maintained in a confidential, non-public manner, and there is good cause why it
6 should not be part of the public record of this case.
7 3. DEFINITIONS
8 3.1. Action: This pending federal lawsuit.
9 3.2. Challenging Party: A Party or Nonparty that challenges the designation
10 of information or items under this Stipulated Protective Order.
11 3.3. “CONFIDENTIAL” Information or Items: Information (regardless of
12 how it is generated, stored or maintained) or tangible things that qualify
13 for protection under Federal Rule of Civil Procedure 26(c), and as
14 specified above in the Good Cause Statement.
15 3.4. Counsel: Outside Counsel of Record and In-House Counsel (as well as
16 their support staff).
17 3.5. Designating Party: A Party or Nonparty that designates information or
18 items that it produces in disclosures or in responses to discovery as
19 “CONFIDENTIAL.”
20 3.6. Disclosure or Discovery Material: All items or information, regardless of
21 the medium or manner in which it is generated, stored, or maintained
22 (including, among other things, testimony, transcripts, and tangible
23 things), that is produced or generated in disclosures or responses to
24 discovery in this matter.
25 3.7. Expert: A person with specialized knowledge or experience in a matter
26 pertinent to the litigation who has been retained by a Party or its counsel
27 to serve as an expert witness or as a consultant in this Action.
28 3.8. In-House Counsel: Attorneys who are employees of a party to this
2
STIPULATED PROTECTIVE ORDER
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1 Action. In-House Counsel does not include Outside Counsel of Record
2 or any other outside counsel.
3 3.9. Nonparty: Any natural person, partnership, corporation, association, or
4 other legal entity not named as a Party to this action.
5 3.10. Outside Counsel of Record: Attorneys who are not employees of a party
6 to this Action but are retained to represent or advise a party to this
7 Action and have appeared in this Action on behalf of that party or are
8 affiliated with a law firm which has appeared on behalf of that party, and
9 includes support staff.
10 3.11. Party: Any party to this Action, including all of its officers, directors,
11 employees, consultants, retained experts, In-House Counsel, and Outside
12 Counsel of Record (and their support staffs).
13 3.12. Producing Party: A Party or Nonparty that produces Disclosure or
14 Discovery Material in this Action.
15 3.13. Professional Vendors: Persons or entities that provide litigation support
16 services (e.g., photocopying, videotaping, translating, preparing exhibits
17 or demonstrations, and organizing, storing, or retrieving data in any form
18 or medium) and their employees and subcontractors.
19 3.14. Protected Material: Any Disclosure or Discovery Material that is
20 designated as “CONFIDENTIAL.”
21 3.15. Receiving Party: A Party that receives Disclosure or Discovery Material
22 from a Producing Party.
23 4. SCOPE
24 The protections conferred by this Stipulated Protective Order cover not only
25 Protected Material, but also (1) any information copied or extracted from Protected
26 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
27 and (3) any testimony, conversations, or presentations by Parties or their Counsel that
28 might reveal Protected Material.
3
STIPULATED PROTECTIVE ORDER
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1 Any use of Protected Material at trial shall be governed by the orders of the
2 trial judge. This Stipulated Protective Order does not govern the use of Protected
3 Material at trial or any evidentiary hearings.
4 5. DURATION
5 Once a case proceeds to trial or an evidentiary hearing, all of the information
6 that was designated as confidential or maintained pursuant to this Stipulated
7 Protective Order becomes public and presumptively will be available to all members
8 of the public, including the press, unless compelling reasons supported by specific
9 factual findings to proceed otherwise are made to the trial judge in advance of the
10 trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th
11 Cir. 2006) (distinguishing “good cause” showing for sealing documents produced in
12 discovery from “compelling reasons” standard when merits-related documents are
13 part of court record). Accordingly, the terms of this Stipulated Protective Order do not
14 extend beyond the commencement of the trial.
15 6. DESIGNATING PROTECTED MATERIAL
16 6.1. Exercise of Restraint and Care in Designating Material for Protection.
17 Each Party or Nonparty that designates information or items for
18 protection under this Stipulated Protective Order must take care to limit
19 any such designation to specific material that qualifies under the
20 appropriate standards. The Designating Party must designate for
21 protection only those parts of material, documents, items, or oral or
22 written communications that qualify so that other portions of the
23 material, documents, items, or communications for which protection is
24 not warranted are not swept unjustifiably within the ambit of this
25 Stipulated Protective Order.
26 Mass, indiscriminate, or routinized designations are prohibited.
27 Designations that are shown to be clearly unjustified or that have been
28 made for an improper purpose (e.g., to unnecessarily encumber the case
4
STIPULATED PROTECTIVE ORDER
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1 development process or to impose unnecessary expenses and burdens on
2 other parties) may expose the Designating Party to sanctions.
3 6.2. Manner and Timing of Designations.
4 Except as otherwise provided in this Stipulated Protective Order
5 (see, e.g., Section 6.2(a)), or as otherwise stipulated or ordered,
6 Disclosure or Discovery Material that qualifies for protection under this
7 Stipulated Protective Order must be clearly so designated before the
8 material is disclosed or produced.
9 Designation in conformity with this Stipulated Protective Order
10 requires the following:
11 (a) For information in documentary form (e.g., paper or electronic
12 documents, but excluding transcripts of depositions or other
13 pretrial or trial proceedings), that the Producing Party affix at a
14 minimum, the legend “CONFIDENTIAL” to each page that
15 contains protected material. If only a portion or portions of the
16 material on a page qualifies for protection, the Producing Party
17 also must clearly identify the protected portion(s) (e.g., by making
18 appropriate markings in the margins).
19 A Party or Nonparty that makes original documents
20 available for inspection need not designate them for protection
21 until after the inspecting Party has indicated which documents it
22 would like copied and produced. During the inspection and before
23 the designation, all of the material made available for inspection
24 shall be deemed “CONFIDENTIAL.” After the inspecting Party
25 has identified the documents it wants copied and produced, the
26 Producing Party must determine which documents, or portions
27 thereof, qualify for protection under this Stipulated Protective
28 Order. Then, before producing the specified documents, the
5
STIPULATED PROTECTIVE ORDER
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1 Producing Party must affix the legend “CONFIDENTIAL” to each
2 page that contains Protected Material. If only a portion or portions
3 of the material on a page qualifies for protection, the Producing
4 Party also must clearly identify the protected portion(s) (e.g., by
5 making appropriate markings in the margins).
6 (b) For testimony given in depositions, that the Designating Party
7 identify the Disclosure or Discovery Material on the record, before
8 the close of the deposition, all protected testimony.
9 (c) For information produced in nondocumentary form, and for any
10 other tangible items, that the Producing Party affix in a prominent
11 place on the exterior of the container or containers in which the
12 information is stored the legend “CONFIDENTIAL.” If only a
13 portion or portions of the information warrants protection, the
14 Producing Party, to the extent practicable, shall identify the
15 protected portion(s).
16 6.3. Inadvertent Failure to Designate.
17 If timely corrected, an inadvertent failure to designate qualified
18 information or items does not, standing alone, waive the Designating
19 Party’s right to secure protection under this Stipulated Protective Order
20 for such material. Upon timely correction of a designation, the Receiving
21 Party must make reasonable efforts to assure that the material is treated
22 in accordance with the provisions of this Stipulated Protective Order.
23 7. CHALLENGING CONFIDENTIALITY DESIGNATIONS
24 7.1. Timing of Challenges.
25 Any Party or Nonparty may challenge a designation of
26 confidentiality at any time that is consistent with the Court’s Scheduling
27 Order.
28 7.2. Meet and Confer.
6
STIPULATED PROTECTIVE ORDER
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1 The Challenging Party shall initiate the dispute resolution process,
2 which shall comply with Local Rule 37.1 et seq., and with Section 4 of
3 Judge Audero’s Procedures (“Mandatory Telephonic Conference for
4 Discovery Disputes”).1
5 7.3. Burden of Persuasion.
6 The burden of persuasion in any such challenge proceeding shall
7 be on the Designating Party. Frivolous challenges, and those made for an
8 improper purpose (e.g., to harass or impose unnecessary expenses and
9 burdens on other parties) may expose the Challenging Party to sanctions.
10 Unless the Designating Party has waived or withdrawn the
11 confidentiality designation, all parties shall continue to afford the
12 material in question the level of protection to which it is entitled under
13 the Producing Party’s designation until the Court rules on the challenge.
14 8. ACCESS TO AND USE OF PROTECTED MATERIALS
15 8.1. Basic Principles.
16 A Receiving Party may use Protected Material that is disclosed or
17 produced by another Party or by a Nonparty in connection with this Action
18 only for prosecuting, defending, or attempting to settle this Action. Such
19 Protected Material may be disclosed only to the categories of persons and
20 under the conditions described in this Stipulated Protective Order. When the
21 Action reaches a final disposition, a Receiving Party must comply with the
22 provisions of Section 14 below.
23 Protected Material must be stored and maintained by a Receiving Party
24 at a location and in a secure manner that ensures that access is limited to the
25 persons authorized under this Stipulated Protective Order.
26
27 1 Judge Audero’s Procedures are available at
28 https://www.cacd.uscourts.gov/honorable-maria-audero.
7
STIPULATED PROTECTIVE ORDER
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1 8.2. Disclosure of “CONFIDENTIAL” Information or Items.
2 Unless otherwise ordered by the Court or permitted in writing by the
3 Designating Party, a Receiving Party may disclose any information or item
4 designated “CONFIDENTIAL” only to:
5 (a) The Receiving Party’s Outside Counsel of Record, as well as employees
6 of said Outside Counsel of Record to whom it is reasonably necessary to
7 disclose the information for this Action;
8 (b) The officers, directors, and employees (including In-House Counsel) of
9 the Receiving Party to whom disclosure is reasonably necessary for this
10 Action;
11 (c) Experts of the Receiving Party to whom disclosure is reasonably
12 necessary for this Action and who have signed the “Acknowledgment
13 and Agreement to Be Bound” (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 Professional
17 Vendors to whom disclosure is reasonably necessary or this Action and
18 who have signed the “Acknowledgment and Agreement to be Bound”
19 (Exhibit A);
20 (g) The author or recipient of a document containing the information or a
21 custodian or other person who otherwise possessed or knew the
22 information;
23 (h) During their depositions, witnesses, and attorneys for witnesses
24 (excluding officers or employees of a Party and their attorneys), in the
25 Action to whom disclosure is reasonably necessary provided: (i) the
26 deposing party requests that the witness sign the “Acknowledgment and
27 Agreement to Be Bound” (Exhibit A); and (ii) the witness will not be
28 permitted to keep any confidential information unless they sign the
8
STIPULATED PROTECTIVE ORDER
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1 “Acknowledgment and Agreement to Be Bound,” unless otherwise
2 agreed by the Designating Party or ordered by the Court. Pages of
3 transcribed deposition testimony or exhibits to depositions that reveal
4 Protected Material may be separately bound by the court reporter and
5 may not be disclosed to anyone except as permitted under this Stipulated
6 Protective Order; and
7 (i) Any mediator or settlement officer, and their supporting personnel,
8 mutually agreed upon by any of the parties engaged in settlement
9 discussions.
10 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
11 IN OTHER LITIGATION
12 If a Party is served with a subpoena or a court order issued in other litigation
13 that compels disclosure of any information or items designated in this Action as
14 “CONFIDENTIAL,” that Party must:
15 (a) Promptly notify in writing the Designating Party. Such notification shall
16 include a copy of the subpoena or court order;
17 (b) Promptly notify in writing the party who caused the subpoena or order to
18 issue in the other litigation that some or all of the material covered by the
19 subpoena or order is subject to this Stipulated Protective Order. Such
20 notification shall include a copy of this Stipulated Protective Order; and
21 (c) Cooperate with respect to all reasonable procedures sought to be pursued
22 by the Designating Party whose Protected Material may be affected.
23 If the Designating Party timely seeks a protective order, the Party served with
24 the subpoena or court order shall not produce any information designated in this
25 action as “CONFIDENTIAL” before a determination by the Court from which the
26 subpoena or order issued, unless the Party has obtained the Designating Party’s
27 permission. The Designating Party shall bear the burden and expense of seeking
28 protection in that court of its confidential material and nothing in these provisions
9
STIPULATED PROTECTIVE ORDER
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1 should be construed as authorizing or encouraging a Receiving Party in this Action to
2 disobey a lawful directive from another court.
3 10. A NONPARTY’S PROTECTED MATERIAL SOUGHT TO BE
4 PRODUCED IN THIS LITIGATION
5 10.1. Application.
6 The terms of this Stipulated Protective Order are applicable to
7 information produced by a Nonparty in this Action and designated as
8 “CONFIDENTIAL.” Such information produced by Nonparties in
9 connection with this litigation is protected by the remedies and relief
10 provided by this Stipulated Protective Order. Nothing in these provisions
11 should be construed as prohibiting a Nonparty from seeking additional
12 protections.
13 10.2. Notification.
14 In the event that a Party is required, by a valid discovery request,
15 to produce a Nonparty’s confidential information in its possession, and
16 the Party is subject to an agreement with the Nonparty not to produce the
17 Nonparty’s confidential information, then the Party shall:
18 (a) Promptly notify in writing the Requesting Party and the Nonparty
19 that some or all of the information requested is subject to a
20 confidentiality agreement with a Nonparty;
21 (b) Promptly provide the Nonparty with a copy of the Stipulated
22 Protective Order in this Action, the relevant discovery request(s),
23 and a reasonably specific description of the information requested;
24 and
25 (c) Make the information requested available for inspection by the
26 Nonparty, if requested.
27 10.3. Conditions of Production.
28 If the Nonparty fails to seek a protective order from this Court within
10
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1 fourteen (14) days after receiving the notice and accompanying information,
2 the Receiving Party may produce the Nonparty’s confidential information
3 responsive to the discovery request. If the Nonparty timely seeks a protective
4 order, the Receiving Party shall not produce any information in its possession
5 or control that is subject to the confidentiality agreement with the Nonparty
6 before a determination by the Court. Absent a court order to the contrary, the
7 Nonparty shall bear the burden and expense of seeking protection in this Court
8 of its Protected Material.
9 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
10 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
11 Protected Material to any person or in any circumstance not authorized under this
12 Stipulated Protective Order, the Receiving Party immediately must (1) notify in
13 writing the Designating Party of the unauthorized disclosures, (2) use its best efforts
14 to retrieve all unauthorized copies of the Protected Material, (3) inform the person or
15 persons to whom unauthorized disclosures were made of all the terms of this
16 Stipulated Protective Order, and (4) request such person or persons to execute the
17 “Acknowledgment and Agreement to be Bound” (Exhibit A).
18 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
19 PROTECTED MATERIAL
20 When a Producing Party gives notice to Receiving Parties that certain
21 inadvertently produced material is subject to a claim of privilege or other protection,
22 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
23 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
24 may be established in an e-discovery order that provides for production without prior
25 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
26 parties reach an agreement on the effect of disclosure of a communication or
27 information covered by the attorney-client privilege or work product protection, the
28 parties may incorporate their agreement in the Stipulated Protective Order submitted
11
STIPULATED PROTECTIVE ORDER
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1 to the Court.
2 13. MISCELLANEOUS
3 13.1. Right to Further Relief.
4 Nothing in this Stipulated Protective Order abridges the right of
5 any person to seek its modification by the Court in the future.
6 13.2. Right to Assert Other Objections.
7 By stipulating to the entry of this Stipulated Protective Order, no
8 Party waives any right it otherwise would have to object to disclosing or
9 producing any information or item on any ground not addressed in this
10 Stipulated Protective Order. Similarly, no Party waives any right to
11 object on any ground to use in evidence of any of the material covered
12 by this Stipulated Protective Order.
13 13.3. Filing Protected Material.
14 A Party that seeks to file under seal any Protected Material must
15 comply with Local Rule 79-5. Protected Material may only be filed
16 under seal pursuant to a court order authorizing the sealing of the
17 specific Protected Material at issue. If a Party's request to file Protected
18 Material under seal is denied by the Court, then the Receiving Party may
19 file the information in the public record unless otherwise instructed by
20 the Court.
21 14. FINAL DISPOSITION
22 After the final disposition of this Action, within sixty (60) days of a written
23 request by the Designating Party, each Receiving Party must return all Protected
24 Material to the Producing Party or destroy such material. As used in this subdivision,
25 “all Protected Material” includes all copies, abstracts, compilations, summaries, and
26 any other format reproducing or capturing any of the Protected Material. Whether the
27 Protected Material is returned or destroyed, the Receiving Party must submit a written
28 certification to the Producing Party (and, if not the same person or entity, to the
12
STIPULATED PROTECTIVE ORDER
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1 Designating Party) by the 60-day deadline that (1) identifies (by category, where
2 appropriate) all the Protected Material that was returned or destroyed and (2) affirms
3 that the Receiving Party has not retained any copies, abstracts, compilations,
4 summaries or any other format reproducing or capturing any of the Protected
5 Material. Notwithstanding this provision, Counsel is entitled to retain an archival
6 copy of all pleadings; motion papers; trial, deposition, and hearing transcripts; legal
7 memoranda; correspondence; deposition and trial exhibits; expert reports; attorney
8 work product; and consultant and expert work product, even if such materials contain
9 Protected Material. Any such archival copies that contain or constitute Protected
10 Material remain subject to this Stipulated Protective Order as set forth in Section 5.
11 15. VIOLATION
12 Any violation of this Stipulated Order may be punished by any and all
13 appropriate measures including, without limitation, contempt proceedings and/or
14 monetary sanctions.
15
16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
17 Dated: June 8, 2022
BLAKELEY LC
18
By: /s/ David Mannion
19
DAVID MANNION
20
Attorneys for Plaintiff
21
Beacon Sales Acquisition, Inc.
22
23
24
Dated: June 8, 2022 DIEHL AND RODEWALD
25 By: /s/ Jay Laurence Raftery, Jr.
JAY LAURENCE RAFTERY, JR.
26
27 Attorneys for Defendant
Nexus Energy Systems, Inc.
28
13
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1 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
2
3
June 14, 2022
Dated: ____________________ _________________________________
4
Maria A. Audero
5 United States Magistrate Judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, ________________________ [full name], of
4 ______________________________ [address], declare under penalty of perjury that
5 I have read in its entirety and understand the Stipulated Protective Order that was
6 issued by the United States District Court for the Central District of California on
7 June ____, 2022, in the case of Beacon Sales Acquisition, Inc. v. Nexus Energy
8 Systems Inc., Case No. 2:22−cv−00293 FLA (MAAx). I agree to comply with and to
9 be bound by all the terms of this Stipulated Protective Order, and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and punishment
11 in the nature of contempt. I solemnly promise that I will not disclose in any manner
12 any information or item that is subject to this Stipulated Protective Order to any
13 person or entity except in strict compliance with the provisions of this Stipulated
14 Protective Order.
15 I further agree to submit to the jurisdiction of the United States District Court
16 for the Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint __________________________ [full
19 name] of ___________________________________ [address and telephone number]
20 as my California agent for service of process in connection with this action or any
21 proceedings related to enforcement of this Stipulated Protective Order.
22
23 Signature: ___________________________
24 Printed Name: ___________________________
25 Date: ___________________________
26 City and State Where Sworn and Signed: ___________________________
27
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Pursuant to L.R. 5-4.3.4(a)(2)(i), I attest that all other signatories listed, and on
1
whose behalf this filing is submitted, concur in the filing’s content and have
2
authorized the filing.
3
DATED: June 10, 2022
4
/s/ David Mannion .
5
. David Mannion
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STIPULATED PROTECTIVE ORDER
Case No. 2:22−cv−00293 FLA (MAAX)