distinguishing “good cause” 11 showing for sealing documents produced in discovery from “compelling reasons” 12 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 11 showing for sealing documents produced in discovery from “compelling reasons” 12 standard when merits-related documents are part of court record
- even stipulated protective orders require 23 good cause showing
Written by the judges who cited it.
The opinion
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 1 of 19 Page ID #:192
1 BARRETT S. LITT, SBN 45527
blitt@mbllegal.com
2
LINDSAY BATTLES, SBN 262862
lbattles@mbllegal.com
3
MCLANE, BEDNARSKI & LITT, LLP
4 975 E. Green Street
Pasadena, California 91106
5 Telephone: (626) 844-7660
Facsimile: (626) 844-7670
6
SCOTT B. RAPKIN, SBN 261867
7
scottrapkin@rapkinesq.com
8 MICHAEL S. RAPKIN, SBN 67220
msrapkin@gmail.com
9 RAPKIN & ASSOCIATES, LLP
475 Washington Blvd.
10 Marina del Rey, California 90292
Telephone: (310) 319-5465
11
Facsimile: (310) 306-1339
12
Attorneys for Plaintiff AGUSTIN HERRERA
13
14
UNITED STATES DISTRICT COURT
15
CENTRAL DISTRICT OF CALIFORNIA
16
17 AGUSTIN HERRERA, on behalf of CASE NO. CV 22-1013-FWS-PDx
18 himself and others similarly situated,
19 Plaintiff, [Hon. Patricia Donahue]
DISCOVERY MATTER
20
21 vs. STIPULATED PROTECTIVE
ORDER1
22
COUNTY OF LOS ANGELES, et al.
23 Complaint Filed: February 14, 2022
24 TRIAL: TBD
Defendants.
25
26
27 1 This Stipulated Protective Order is substantially based on the model protective order provided
under Magistrate Judge Patricia Donahue’s Procedures. Changes by the parties have been tracked
28
in a copy submitted to the Court.
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 2 of 19 Page ID #:193
1 1. A. 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
4 disclosure and from use for any purpose other than prosecuting this litigation may be
5 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter
6 the following Stipulated Protective Order. The parties acknowledge that this Order
7 does not confer blanket protections on all disclosures or responses to discovery and
8 that the protection it affords from public disclosure and use extends only to the
9 limited information or items that are entitled to confidential treatment under the
10 applicable legal principles.
11 B. GOOD CAUSE STATEMENT
12 This action arises from alleged conditions of confinement in juvenile detention
13 facilities operated by the Los Angeles County Department of Probation. Discovery
14 in this case will necessarily involve disclosure of confidential information
15 concerning youth currently and previously confined to juvenile detention facilities,
16 for which special protection from public disclosure and from use for any purpose
17 other than prosecution of this action is warranted. Such confidential and proprietary
18 materials and information consist of, among other things, electronic database
19 information reflecting the identities of youth confined to detention facilities and
20 details of their confinement, documents and electronic records potentially reflecting
21 (directly or indirectly) access to medical and mental health care, documents and
22 records containing information about juvenile court proceedings, and other
23 documents that are protected by law and potentially implicate the privacy rights of
24 juvenile detainees and their families. This information is otherwise generally
25 unavailable to the public, and/or may be privileged or otherwise protected from
26 disclosure under state or federal statutes, court rules, case decisions, or common law.
27 Accordingly, to expedite the flow of information, to facilitate the prompt resolution
28 of disputes over confidentiality of discovery materials, to adequately protect
2
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 3 of 19 Page ID #:194
1 information the parties are entitled to keep confidential, to ensure that the parties are
2 permitted reasonable necessary uses of such material in preparation for and in the
3 conduct of trial, to address their handling at the end of the litigation, and serve the
4 ends of justice, a protective order for such information is justified in this matter. It is
5 the intent of the parties that information will not be designated as confidential for
6 tactical reasons and that nothing be so designated without a good faith belief that
7 it has been maintained in a confidential, non-public manner, and there is good cause
8 why it should not be part of the public record of this case.
9
10
11 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
12 The parties further acknowledge, as set forth in Section 12.3, below, that this
13 Stipulated Protective Order does not entitle them to file confidential information
14 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
15 the standards that will be applied when a party seeks permission from the court to
16 file material under seal.
17 There is a strong presumption that the public has a right of access to judicial
18 proceedings and records in civil cases. In connection with non-dispositive motions,
19 good cause must be shown to support a filing under seal. See Kamakana v. City and
20 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
21 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
22 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require
23 good cause showing), and a specific showing of good cause or compelling reasons
24 with proper evidentiary support and legal justification, must be made with respect to
25 Protected Material that a party seeks to file under seal. The parties’ mere designation
26 of Disclosure or Discovery Material as CONFIDENTIAL does not—without the
27 submission of competent evidence by declaration, establishing that the material
28 sought to be filed under seal qualifies as confidential, privileged, or otherwise
3
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 4 of 19 Page ID #:195
1 protectable—constitute good cause.
2 Further, if a party requests sealing related to a dispositive motion or trial, then
3 compelling reasons, not only good cause, for the sealing must be shown, and the
4 relief sought shall be narrowly tailored to serve the specific interest to be protected.
5 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each
6 item or type of information, document, or thing sought to be filed or introduced under
7 seal in connection with a dispositive motion or trial, the party seeking protection
8 must articulate compelling reasons, supported by specific facts and legal
9 justification, for the requested sealing order. Again, competent evidence supporting
10 the application to file documents under seal must be provided by declaration.
11 Any document that is not confidential, privileged, or otherwise protectable in
12 its entirety will not be filed under seal if the confidential portions can be redacted. If
13 documents can be redacted, then a redacted version for public viewing, omitting only
14 the confidential, privileged, or otherwise protectable portions of the document, shall
15 be filed. Any application that seeks to file documents under seal in their entirety
16 should include an explanation of why redaction is not feasible.
17
18 2. DEFINITIONS
19 2.1 Action: Augustin Herrera v. County of Los Angeles, 22-cv-
20 01013 (PA-PD).
21 2.2 Challenging Party: a Party or Non-Party that challenges
22 the designation of information or items under this Order.
23 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
24 how it is generated, stored or maintained) or tangible things that qualify for
25 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the
26 Good Cause Statement.
27 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
28 their support staff).
4
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 5 of 19 Page ID #:196
1 2.5 Designating Party: a Party or Non-Party that designates information or
2 items that it produces in disclosures or in responses to discovery as
3 “CONFIDENTIAL.”
4 2.6 Disclosure or Discovery Material: all items or information, regardless
5 of the medium or manner in which it is generated, stored, or maintained (including,
6 among other things, testimony, transcripts, and tangible things), that are produced or
7 generated in disclosures or responses to discovery in this matter.
8 2.7 Expert: a person with specialized knowledge or experience in a matter
9 pertinent to the litigation who has been retained by a Party or its counsel to serve as
10 an expert witness or as a consultant in this Action.
11 2.8 House Counsel: attorneys who are employees of a party to this Action.
12 House Counsel does not include Outside Counsel of Record or any other outside
13 counsel.
14 2.9 Non-Party: any natural person, partnership, corporation, association, or
15 other legal entity not named as a Party to this action.
16 2.10 Outside Counsel of Record: attorneys who are not employees of a party
17 to this Action but are retained to represent or advise a party to this Action and have
18 appeared in this Action on behalf of that party or are affiliated with a law firm which
19 has appeared on behalf of that party, and includes support staff.
20 2.11 Party: any party to this Action, including all of its officers, directors,
21 employees, consultants, retained experts, and Outside Counsel of Record (and their
22 support staffs).
23 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
24 Discovery Material in this Action.
25 2.13 Professional Vendors: persons or entities that provide litigation
26 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
27 demonstrations, and organizing, storing, or retrieving data in any form or medium)
28 and their employees and subcontractors.
5
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 6 of 19 Page ID #:197
1 2.14 Protected Material: any Disclosure or Discovery Material that is
2 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”
3 2.15 "HIGHLY CONFIDENTIAL” Information: refers to
4 CONFIDENTIAL Information (as defined in 2.3, above) subject to additional
5 protection measures under this agreement. HIGHLY CONFIDENTIAL information
6 includes CONFIDENTIAL information that reflects: (1) the identities of youth
7 detained by the Los Angeles County Department of Probation; or (2) information
8 reflecting investigatory or disciplinary proceedings involving County employees
9 and/or personal information concerning County employees including, for example,
10 leave for medical or other personal reasons. Such information that contains such
11 identifying information shall be designated “HIGHLY CONFIDENTIAL” as
described in Section 5, below.
12
2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
13
from a Producing Party.
14
15
3. SCOPE
16
The protections conferred by this Stipulation and Order cover not only
17
Protected Material (as defined above), but also (1) any information copied or
18
extracted from Protected Material; (2) all copies, excerpts, summaries, or
19
compilations of Protected Material; and (3) any testimony, conversations, or
20
presentations by Parties or their Counsel that might reveal Protected Material.
21
Any use of Protected Material at trial shall be governed by the orders of the
22
trial judge. This Order does not govern the use of Protected Material at trial.
23
24
4. DURATION
25
26 FINAL DISPOSITION of the action is defined as the conclusion of any
27 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
28 has run. Except as set forth below, the terms of this protective order apply through
6
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 7 of 19 Page ID #:198
1 FINAL DISPOSITION of the action. The parties may stipulate that the they will be
2 contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
3 but will have to file a separate action for enforcement of the agreement once all
4 proceedings in this case are complete.
5 Once a case proceeds to trial, information that was designated as
6 CONFIDENTIAL or maintained pursuant to this protective order used or introduced
7 as an exhibit at trial becomes public and will be presumptively available to all
8 members of the public, including the press, unless compelling reasons supported by
9 specific factual findings to proceed otherwise are made to the trial judge in advance
10 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
11 showing for sealing documents produced in discovery from “compelling reasons”
12 standard when merits-related documents are part of court record). Accordingly, for
13 such materials, the terms of this protective order do not extend beyond the
14 commencement of the trial.
15
16 5. DESIGNATING PROTECTED MATERIAL
17
5.1 Exercise of Restraint and Care in Designating Material for Protection.
18
Each Party or Non-Party that designates information or items for protection under
19
this Order must take care to limit any such designation to specific material that
20
qualifies under the appropriate standards. The Designating Party must designate for
21
protection only those parts of material, documents, items, or oral or written
22
communications that qualify so that other portions of the material, documents, items,
23
or communications for which protection is not warranted are not swept unjustifiably
24
within the ambit of this Order.
25
Mass, indiscriminate, or routinized designations are prohibited. Designations
26
that are shown to be clearly unjustified or that have been made for an improper
27
purpose (e.g., to unnecessarily encumber the case development process or to impose
28
7
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 8 of 19 Page ID #:199
1 unnecessary expenses and burdens on other parties) may expose the Designating
2 Party to sanctions.
3 If it comes to a Designating Party’s attention that information or items that it
4 designated for protection do not qualify for protection, that Designating Party must
5 promptly notify all other Parties that it is withdrawing the inapplicable designation.
6 5.2 Manner and Timing of Designations. Except as otherwise provided in
7 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
8 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
9 under this Order must be clearly so designated before the material is disclosed or
10 produced.
11 Designation in conformity with this Order requires:
12 (a) for information in documentary form (e.g., paper or electronic
13 documents, but excluding transcripts of depositions or other pretrial or trial
14 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or,
15 where appropriate, “HIGHLY CONFIDENTIAL (hereinafter, collectively,
16 CONFIDENTIAL legend), to each page that contains protected material.
17 If only a portion or portions of the material on a page qualifies for
18 protection, to the extent practical, the Producing Party also must clearly identify the
19 CONFIDENTIAL/HIGHLY CONFIDENTIAL portion(s) (e.g., by making
20 appropriate markings in the margins). The parties nevertheless recognize that there
21 may be situations where it would be impractical or burdensome to identify the
22 specific pages or section(s) that qualify as either “CONFIDENTIAL” or “HIGHLY
23 CONFIDENTIAL.” Accordingly, the parties anticipate the possibility the producing
24 party will, at times, need to designate protected material on a document-by-document
25 basis. Should a dispute arise as to the breadth of a confidentiality designation, the
26 parties will resolve the dispute pursuant to Section 6.1.
The CONFIDENTIAL legend shall not obscure the contents of any page to
27
which it is affixed, impede the ability to readily read the page’s contents, or appear
28
8
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 9 of 19 Page ID #:200
1 over any words contained in the document.
2 A Party or Non-Party that makes original documents available for inspection
3 need not designate them for protection until after the inspecting Party has indicated
4 which documents it would like copied and produced. During the inspection and
5 before the designation, all of the material made available for inspection shall be
6 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
7 documents it wants copied and produced, the Producing Party must determine which
8 documents, or portions thereof, qualify for protection under this Order. Then, before
9 producing the specified documents, the Producing Party must affix the
10 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
11 portion or portions of the material on a page qualifies for protection, the Producing
12 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
13 markings in the margins). The CONFIDENTIAL OR HIGHLY CONFIDENTIAL
14 legend shall not obscure the contents of any page to which it is affixed, impede the
15 ability to readily read the page’s contents, or appear over any words contained in the
16 document.
17 (b) for testimony given in depositions that the Designating Party identify
18 the Disclosure or Discovery Material on the record, before the close of the deposition
19 all protected testimony.
20 (c) for information produced in some form other than documentary and for
21 any other tangible items, that the Producing Party affix in a prominent place on the
22 exterior of the container or containers in which the information is stored the legend
23 “CONFIDENTIAL.” If only a portion or portions of the information warrants
24 protection, the Producing Party, to the extent practicable, shall identify the protected
25 portion(s).
26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
27 failure to designate qualified information or items does not, standing alone, waive
28 the Designating Party’s right to secure protection under this Order for such material.
9
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 10 of 19 Page ID #:201
1 Upon timely correction of a designation, the Receiving Party must make reasonable
2 efforts to assure that the material is treated in accordance with the provisions of this
3 Order.
4
5 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
7 designation of confidentiality (or designation of HIGHLY CONFIDENTIAL) at any
8 time that is consistent with the Court’s Scheduling Order. The parties’ right to
9 challenge a confidentiality designation (CONFIDENTIAL or HIGHLY
10 CONFIDENTIAL), specifically includes the right to challenge designations as to
11 specific portions of documents or information within documents that they believe
12 contains no confidential information. This provision includes the right to contest
13 whether any confidentiality designation applies to a document that has been
14 anonymized by removing references to individual probation staff or youth, or a
15 document from which names and identifying information have been redacted.
16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
17 resolution process under Local Rule 37.1 et seq.
18 6.3 The burden of persuasion in any such challenge proceeding shall be on
19 the Designating Party. Frivolous challenges, and those made for an improper purpose
20 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
21 expose the Challenging Party to sanctions. Unless the Designating Party has waived
22 or withdrawn the confidentiality designation, all parties shall continue to afford the
23 material in question the level of protection to which it is entitled under the Producing
24 Party’s designation until the Court rules on the challenge.
25
26 7. ACCESS TO AND USE OF PROTECTED MATERIAL
27
7.1 Basic Principles. A Receiving Party may use Protected Material that is
28
10
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 11 of 19 Page ID #:202
1 disclosed or produced by another Party or by a Non-Party in connection with this
2 Action only for prosecuting, defending, or attempting to settle this Action. Such
3 Protected Material may be disclosed only to the categories of persons and under the
4 conditions described in this Order (7.3). When the Action has been terminated, a
5 Receiving Party must comply with the provisions of section 13 below (FINAL
6 DISPOSITION). Provided disclosure is determined to be reasonably necessary by
7 Plaintiff’s counsel’s for legitimate litigation purposes, Plaintiff’s counsel may
8 permissibly disclose CONFIDENTIAL information to Plaintiff that does not identify
9 the names of other youth (i.e. CONFIDENTIAL information that has not been
10 designated HIGHLY CONFIDENTIAL). Permissible disclosure specifically
11 includes documents that are specific and unique to Plaintiff, without identifying other
12 youth. It also specifically includes CONFIDENTIAL documents that do not
13 reference individual youth by name or identifying information, such as documents
14 referencing policies and procedures.
15 7.2 Protected Material must be stored and maintained by a Receiving Party
16 at a location and in a secure manner that ensures that access is limited to the persons
17 authorized under this Order.
18 7.3 Disclosure of “CONFIDENTIAL” Information or Items. Unless
19 otherwise ordered by the court or permitted in writing by the Designating Party, a
20 Receiving Party may disclose any information or item designated
21 “CONFIDENTIAL” only to:
22 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
23 as employees of said Outside Counsel of Record to whom it is reasonably necessary
24 to disclose the information for this Action;
25 (b) the officers, directors, and employees (including House Counsel) of the
26 Receiving Party to whom disclosure is reasonably necessary for this Action;
27 (c) Experts (as defined in this Order) of the Receiving Party to whom
28 disclosure is reasonably necessary for this Action and who have signed the
11
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 12 of 19 Page ID #:203
1 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
2 (d) the court and its personnel;
3 (e) court reporters and their staff;
4 (f) professional jury or trial consultants, mock jurors, and Professional
5 Vendors to whom disclosure is reasonably necessary for this Action and who have
6 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
7 (g) the author or recipient of a document containing the information or a
8 custodian or other person who otherwise possessed or knew the information;
9 (h) during their depositions, witnesses ,and attorneys for witnesses, in the
10 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
11 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
12 not be permitted to keep any confidential information unless they sign the
13 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
14 agreed by the Designating Party or ordered by the court. Pages of transcribed
15 deposition testimony or exhibits to depositions that reveal Protected Material may
16 be separately bound by the court reporter and may not be disclosed to anyone except
17 as permitted under this Stipulated Protective Order; and
18 (i) any mediator or settlement officer, and their supporting personnel,
19 mutually agreed upon by any of the parties engaged in settlement discussions.
20 Disclosure of documents or information designated “HIGHLY CONFIDENTIAL”:
21 documents and information designated HIGHLY CONFIDENTIAL may only be
22 disclosed to Plaintiff using a redacted version of the document concealing the names
23 and other identifying information of other individual youth. Before making any such
24 disclosure, Plaintiffs’ counsel shall prepare a redacted version of the document and
25 provide a copy to counsel for the Designating Party. Upon receiving a proposed
26 redacted version, the Designating Party shall have 3 business days (72 business
27 hours) to review the redacted version and to make further proposed redactions or to
28 otherwise object to disclosure to the Plaintiff, or accept it as proposed. If the
12
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 13 of 19 Page ID #:204
1 Designating Party does not object in writing within 3 days, the Receiving Party’s
2 counsel may proceed in disclosing the redacted version of the document to Plaintiff.
3 If counsel for the parties cannot agree on a redacted version of the document, the
4 Receiving Party will initiate a challenge to the HIGHLY CONFIDENTIAL
5 designation, pursuant to Section 6, above. Nothing in this provision shall prohibit a
6 Receiving Party’s Counsel from sharing information designated “HIGHLY
7 CONFIDENTIAL” with their employees or Experts.
8 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
9 IN OTHER LITIGATION
10 If a Party is served with a subpoena or a court order issued in other litigation
11 that compels disclosure of any information or items designated in this Action as
12 “CONFIDENTIAL,” that Party must:
13
(a) promptly notify in writing the Designating Party. Such notification shall
14
include a copy of the subpoena or court order;
15
(b) promptly notify in writing the party who caused the subpoena or order
16
to issue in the other litigation that some or all of the material covered by the subpoena
17
or order is subject to this Protective Order. Such notification shall include a copy of
18
this Stipulated Protective Order; and
19
(c) cooperate with respect to all reasonable procedures sought to be pursued
20
by the Designating Party whose Protected Material may be affected.
21
If the Designating Party timely seeks a protective order, the Party served
22
with the subpoena or court order shall not produce any information designated in this
23
action as “CONFIDENTIAL” before a determination by the court from which the
24
subpoena or order issued, unless the Party has obtained the Designating Party’s
25
permission. The Designating Party shall bear the burden and expense of seeking
26
protection in that court of its confidential material and nothing in these provisions
27
should be construed as authorizing or encouraging a Receiving Party in this Action
28
13
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 14 of 19 Page ID #:205
1 to disobey a lawful directive from another court.
2
3 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT
4 TO BE PRODUCED IN THIS LITIGATION
5 (a) The terms of this Order are applicable to information produced by a
6 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
7 produced by Non-Parties in connection with this litigation is protected by the
8 remedies and relief provided by this Order. Nothing in these provisions should be
9 construed as prohibiting a Non-Party from seeking additional protections.
10 (b) In the event that a Party is required, by a valid discovery request, to
11 produce a Non-Party’s confidential information in its possession, and the Party is
12 subject to an agreement with the Non-Party not to produce the Non-Party’s
13 confidential information, then the Party shall:
14
(1) promptly notify in writing the Requesting Party and the Non-Party
15
that some or all of the information requested is subject to a confidentiality agreement
16
with a Non-Party;
17
(2) promptly provide the Non-Party with a copy of the Stipulated
18
Protective Order in this Action, the relevant discovery request(s), and a reasonably
19
specific description of the information requested; and
20
(3) make the information requested available for inspection by the
21
Non-Party, if requested.
22
(c) If the Non-Party fails to seek a protective order from this court within
23
14 days of receiving the notice and accompanying information, the Receiving Party
24
may produce the Non-Party’s confidential information responsive to the discovery
25
request. If the Non-Party timely seeks a protective order, the Receiving Party shall
26
not produce any information in its possession or control that is subject to the
27
confidentiality agreement with the Non-Party before a determination by the court.
28
14
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 15 of 19 Page ID #:206
1 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
2 of seeking protection in this court of its Protected Material.
3
4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
6 Protected Material to any person or in any circumstance not authorized under this
7 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
8 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
9 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
10 persons to whom unauthorized disclosures were made of all the terms of this Order,
11 and (d) request such person or persons to execute the “Acknowledgment and
12 Agreement to Be Bound” that is attached hereto as Exhibit A.
13
14
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
15
PROTECTED MATERIAL
16
When a Producing Party gives notice to Receiving Parties that certain
17
inadvertently produced material is subject to a claim of privilege or other protection,
18
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
19
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
20
may be established in an e-discovery order that provides for production without prior
21
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
22
parties reach an agreement on the effect of disclosure of a communication or
23
information covered by the attorney-client privilege or work product protection, the
24
parties may incorporate their agreement in the stipulated protective order submitted
25
to the court.
26
27
28
15
Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 16 of 19 Page ID #:207
1 12. MISCELLANEOUS
2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
3 person to seek its modification by the Court in the future.
4 12.2 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 in this
7 Stipulated Protective Order. Similarly, no Party waives any right to object on any
8 ground to use in evidence of any of the material covered by this Protective Order.
9 12.3 Filing Protected Material. A Party that seeks to file under seal any
10 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
11 only be filed under seal pursuant to a court order authorizing the sealing of the
12 specific Protected Material at issue. If a Party's request to file Protected Material
13 under seal is denied by the court, then the Receiving Party may file the information
14 in the public record unless otherwise instructed by the court.
15
16 13. FINAL DISPOSITION
17
After the final disposition of this Action, as defined in paragraph 4, within 60
18
days of a written request by the Designating Party, each Receiving Party must return
19
all Protected Material to the Producing Party or destroy such material. As used in
20
this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
21
summaries, and any other format reproducing or capturing any of the Protected
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Material. Whether the Protected Material is returned or destroyed, the Receiving
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Party must submit a written certification to the Producing Party (and, if not the same
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person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
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(by category, where appropriate) all the Protected Material that was returned or
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destroyed and (2)affirms that the Receiving Party has not retained any copies,
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abstracts, compilations, summaries or any other format reproducing or capturing any
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Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 17 of 19 Page ID #:208
1 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
2 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
3 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
4 reports, attorney work product, and consultant and expert work product, even if such
5 materials contain Protected Material. Any such archival copies that contain or
6 constitute Protected Material remain subject to this Protective Order as set forth in
7 Section 4 (DURATION).
8 Any violation of this Order may be punished by any and all appropriate
9 measures including, without limitation, contempt proceedings and/or monetary
10 sanctions.
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12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED: August 5, 2022 Respectfully submitted,
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RAPKIN & ASSOCIATES, LLP
MCLANE, BEDNARSKI & LITT, LLP
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By: /s/ Lindsay Battles
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Barrett S. Litt
18 Lindsay Battles
Scott Rapkin
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Attorneys for Plaintiff
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DATED: August 5, 2022 GLASER WEIL FINK HOWARD
22 AVCHEN & SHAPIRO LLP
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By: /s/ Craig H. Marcus
24 Andrew Baum
25 Craig H. Marcus
Rob Lee
26 Attorneys for Defendants
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Case #:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 18o0f19 Page ID #:209
1 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
2 .
DATED: August 05, 2022 44, Is Lona fog
; United States Magistrate Judge
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Case 2:22-cv-01013-FWS-PD Document 27 Filed 08/05/22 Page 19 of 19 Page ID #:210
1 EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, ________________________ [print or type full name], of
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_________________ [print or type full address], declare under penalty of perjury
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that I have read in its entirety and understand the Stipulated Protective Order that
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was issued by the United States District Court for the Central District of California
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on [date] in the case of Augustin Herrera v. County of Los Angeles, 22-cv-01013
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(PA-PD). I agree to comply with and to be bound by all the terms of this Stipulated
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Protective Order and I understand and acknowledge that failure to so comply could
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expose me to sanctions and punishment in the nature of contempt. I solemnly
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promise that I will not disclose in any manner any information or item that is subject
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to this Stipulated Protective Order to any person or entity except in strict
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compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for
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the Central District of California for the purpose of enforcing the terms of this
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Stipulated Protective Order, even if such enforcement proceedings occur after
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termination of this action. I hereby appoint ________________________ [print or
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type full name] of _________ [print or type full address and telephone number] as
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my California agent for service of process in connection with this action or any
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proceedings related to enforcement of this Stipulated Protective Order.
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22 Date: __________________________
23 City and State where sworn and signed: _____________________________
24 Printed name: ____________________________________
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Signature: ________________________________
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