distinguishing “good cause” showing for 4 sealing documents produced in discovery from “compelling reasons” standard when 5 merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for 4 sealing documents produced in discovery from “compelling reasons” standard when 5 merits-related documents are part of court record
Written by the judges who cited it.
The opinion
Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 1 of 14 Page ID #:327
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UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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HIEN T. NGUYEN, No. 2:21-cv-04327-VAP(ASx)
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Plaintiff, PROTECTIVE ORDER
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v.
14 Hon. Alka Sagar
CARLOS DEL TORO, in his official United States Magistrate Judge
15 capacity as SECRETARY OF THE
NAVY,
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Defendant.
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 2 of 14 Page ID #:328
1 1. A. PURPOSES AND LIMITATIONS
2 Discovery in this action is likely to involve production of confidential, proprietary,
3 or private information for which special protection from public disclosure and from use
4 for any purpose other than prosecuting this litigation may be warranted. Accordingly, the
5 parties hereby stipulate to and petition the Court to enter the following Stipulated
6 Protective Order. The parties acknowledge that this Order does not confer blanket
7 protections on all disclosures or responses to discovery and that the protection it affords
8 from public disclosure and use extends only to the limited information or items that are
9 entitled to confidential treatment under the applicable legal principles. The parties
10 further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective
11 Order does not entitle them to file confidential information under seal; Civil Local Rule
12 79-5 sets forth the procedures that must be followed and the standards that will be
13 applied when a party seeks permission from the court to file material under seal.
14 B. GOOD CAUSE STATEMENT
15 This employment action centers on Plaintiff’s claims for damages stemming from
16 discrimination and reprisal from the time she worked for the agency through to her
17 termination. As part of those damages, Plaintiff claims she suffered, and continues to
18 suffer, from medical issues, to include mental health issues. Thus, Plaintiff has put her
19 medical and mental health at issue and Defendant seeks her relevant medical records.
20 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of
21 disputes over confidentiality of discovery materials, to adequately protect information
22 the parties are entitled to keep confidential, to ensure that the parties are permitted
23 reasonable necessary uses of such material in preparation for and in the conduct of trial,
24 to address their handling at the end of the litigation, and serve the ends of justice, a
25 protective order for such information is justified in this matter. It is the intent of the
26 parties that information will not be designated as confidential for tactical reasons and
27 that nothing be so designated without a good faith belief that it has been maintained in a
28 confidential, non-public manner, and there is good cause why it should not be part of the
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 3 of 14 Page ID #:329
1 public record of this case.
2 2. DEFINITIONS
3 2.1 Action: this pending federal lawsuit.
4 2.2 Challenging Party: a Party or Non-Party that challenges the
5 designation of information or items under this Order.
6 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
7 how it is generated, stored or maintained) or tangible things that qualify for
8 protection under Federal Rule of Civil Procedure 26(c), information that would
9 otherwise be protected from disclosure under the Privacy Act, and as specified
10 above in the Good Cause Statement.
11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
12 their support staff).
13 2.5 Designating Party: a Party or Non-Party that designates information or
14 items that it produces in disclosures or in responses to discovery as
15 “CONFIDENTIAL.”
16 2.6 Disclosure or Discovery Material: all items or information, regardless
17 of the medium or manner in which it is generated, stored, or maintained
18 (including, among other things, testimony, transcripts, and tangible things), that
19 are produced or generated in disclosures or responses to discovery in this matter.
20 2.7 Expert: a person with specialized knowledge or experience in a matter
21 pertinent to the litigation who has been retained by a Party or its counsel to serve
22 as an expert witness or as a consultant in this Action.
23 2.8 House Counsel: attorneys who are employees of a party to this Action.
24 House Counsel does not include Outside Counsel of Record or any other outside
25 counsel.
26 2.9 Non-Party: any natural person, partnership, corporation, association,
27 or other legal entity not named as a Party to this action.
28 2.10 Outside Counsel of Record: attorneys who are not employees of a
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1 party to this Action but are retained to represent or advise a party to this Action
2 and have appeared in this Action on behalf of that party or are affiliated with a law
3 firm which has appeared on behalf of that party, and includes support staff.
4 2.11 Party: any party to this Action, including all of its officers, directors,
5 employees, consultants, retained experts, and Outside Counsel of Record (and
6 their support staffs).
7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
8 Discovery Material in this Action.
9 2.13 Professional Vendors: persons or entities that provide litigation
10 support services (e.g., photocopying, videotaping, translating, preparing exhibits
11 or demonstrations, and organizing, storing, or retrieving data in any form or
12 medium) and their employees and subcontractors.
13 2.14 Protected Material: any Disclosure or Discovery Material that is
14 designated as “CONFIDENTIAL.”
15 2.15 Receiving Party: a Party that receives Disclosure or Discovery
16 Material from a Producing Party.
17 3. SCOPE
18 The protections conferred by this Stipulation and Order cover not only Protected
19 Material (as defined above), but also (1) any information copied or extracted from
20 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
21 Material; and (3) any testimony, conversations, or presentations by Parties or their
22 Counsel that might reveal Protected Material.
23 Any use of Protected Material at trial shall be governed by the orders of the trial
24 judge. This Order does not govern the use of Protected Material at trial.
25 4. DURATION
26 Once a case proceeds to trial, all of the information that was designated as
27 confidential or maintained pursuant to this protective order becomes public and will be
28 presumptively available to all members of the public, including the press, unless
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 5 of 14 Page ID #:331
1 compelling reasons supported by specific factual findings to proceed otherwise are made
2 to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu,
3 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for
4 sealing documents produced in discovery from “compelling reasons” standard when
5 merits-related documents are part of court record). Accordingly, the terms of this
6 protective order do not extend beyond the commencement of the trial.
7 5. DESIGNATING PROTECTED MATERIAL
8 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
9 Party or Non-Party that designates information or items for protection under this Order
10 must take care to limit any such designation to specific material that qualifies under the
11 appropriate standards. The Designating Party must designate for protection only those
12 parts of material, documents, items, or oral or written communications that qualify so
13 that other portions of the material, documents, items, or communications for which
14 protection is not warranted are not swept unjustifiably within the ambit of this Order.
15 Mass, indiscriminate, or routinized designations are prohibited. Designations that
16 are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
17 to unnecessarily encumber the case development process or to impose unnecessary
18 expenses and burdens on other parties) may expose the Designating Party to sanctions.
19 If it comes to a Designating Party’s attention that information or items that it
20 designated for protection do not qualify for protection, that Designating Party must
21 promptly notify all other Parties that it is withdrawing the inapplicable designation.
22 5.2 Manner and Timing of Designations. Except as otherwise provided in this
23 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
24 ordered, Disclosure or Discovery Material that qualifies for protection under this Order
25 must be clearly so designated before the material is disclosed or produced.
26 Designation in conformity with this Order requires:
27 (a) for information in documentary form (e.g., paper or electronic documents,
28 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 6 of 14 Page ID #:332
1 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
2 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
3 portion or portions of the material on a page qualifies for protection, the Producing Party
4 also must clearly identify the protected portion(s) (e.g., by making appropriate markings
5 in the margins).
6 A Party or Non-Party that makes original documents available for inspection need
7 not designate them for protection until after the inspecting Party has indicated which
8 documents it would like copied and produced. During the inspection and before the
9 designation, all of the material made available for inspection shall be deemed
10 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
11 copied and produced, the Producing Party must determine which documents, or portions
12 thereof, qualify for protection under this Order. Then, before producing the specified
13 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
14 that contains Protected Material. If only a portion or portions of the material on a page
15 qualifies for protection, the Producing Party also must clearly identify the protected
16 portion(s) (e.g., by making appropriate markings in the margins).
17 (b) for testimony given in depositions that the Designating Party identify the
18 Disclosure or Discovery Material on the record, before the close of the deposition all
19 protected testimony.
20 (c) for information produced in some form other than documentary and for any
21 other tangible items, that the Producing Party affix in a prominent place on the exterior
22 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 protection,
24 the Producing Party, to the extent practicable, shall identify the protected portion(s).
25 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
26 to designate qualified information or items does not, standing alone, waive the
27 Designating Party’s right to secure protection under this Order for such material. Upon
28 timely correction of a designation, the Receiving Party must make reasonable efforts to
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 7 of 14 Page ID #:333
1 assure that the material is treated in accordance with the provisions of this Order.
2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
3 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
4 designation of confidentiality at any time that is consistent with the Court’s Scheduling
5 Order.
6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
7 resolution process under Local Rule 37.1 et seq.
8 6.3 The burden of persuasion in any such challenge proceeding shall be on the
9 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
10 to harass or impose unnecessary expenses and burdens on other parties) may expose the
11 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
12 the confidentiality designation, all parties shall continue to afford the material in
13 question the level of protection to which it is entitled under the Producing Party’s
14 designation until the Court rules on the challenge.
15 7. ACCESS TO AND USE OF PROTECTED MATERIAL
16 7.1 Basic Principles. A Receiving Party may use Protected Material that is
17 disclosed or produced by another Party or by a Non-Party in connection with this Action
18 only for prosecuting, defending, or attempting to settle this Action. Such Protected
19 Material may be disclosed only to the categories of persons and under the conditions
20 described in this Order. When the Action has been terminated, a Receiving Party must
21 comply with the provisions of section 13 below (FINAL DISPOSITION).
22 Protected Material must be stored and maintained by a Receiving Party at a
23 location and in a secure manner that ensures that access is limited to the persons
24 authorized under this Order.
25 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
26 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
27 may disclose any information or item designated “CONFIDENTIAL” only to:
28 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 8 of 14 Page ID #:334
1 employees of said Outside Counsel of Record to whom it is reasonably necessary to
2 disclose the information for this Action;
3 (b) the officers, directors, and employees (including House Counsel) of the
4 Receiving Party to whom disclosure is reasonably necessary for this Action;
5 (c) Experts (as defined in this Order) of the Receiving Party to whom
6 disclosure is reasonably necessary for this Action and who have signed the
7 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
8 (d) the court and its personnel;
9 (e) court reporters and their staff;
10 (f) professional jury or trial consultants, mock jurors, and Professional Vendors
11 to whom disclosure is reasonably necessary for this Action and who have signed the
12 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
13 (g) the author or recipient of a document containing the information or a
14 custodian or other person who otherwise possessed or knew the information;
15 (h) during their depositions, witnesses ,and attorneys for witnesses, in the
16 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
17 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will not
18 be permitted to keep any confidential information unless they sign the
19 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
20 by the Designating Party or ordered by the court. Pages of transcribed deposition
21 testimony or exhibits to depositions that reveal Protected Material may be separately
22 bound by the court reporter and may not be disclosed to anyone except as permitted
23 under this Stipulated Protective Order; and
24 (i) any mediator or settlement officer, and their supporting personnel, mutually
25 agreed upon by any of the parties engaged in settlement discussions.
26 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
27 IN OTHER LITIGATION
28 If a Party is served with a subpoena or a court order issued in other litigation that
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 9 of 14 Page ID #:335
1 compels disclosure of any information or items designated in this Action as
2 “CONFIDENTIAL,” that Party must:
3 (a) promptly notify in writing the Designating Party. Such notification shall
4 include a copy of the subpoena or court order;
5 (b) promptly notify in writing the party who caused the subpoena or order to
6 issue in the other litigation that some or all of the material covered by the subpoena or
7 order is subject to this Protective Order. Such notification shall include a copy of this
8 Stipulated Protective Order; and
9 (c) cooperate with respect to all reasonable procedures sought to be pursued by
10 the Designating Party whose Protected Material may be affected.
11 If the Designating Party timely seeks a protective order, the Party served with the
12 subpoena or court order shall not produce any information designated in this action as
13 “CONFIDENTIAL” before a determination by the court from which the subpoena or
14 order issued, unless the Party has obtained the Designating Party’s permission. The
15 Designating Party shall bear the burden and expense of seeking protection in that court
16 of its confidential material and nothing in these provisions should be construed as
17 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
18 from another court.
19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
20 PRODUCED IN THIS LITIGATION
21 (a) The terms of this Order are applicable to information produced by a Non-
22 Party in this Action and designated as “CONFIDENTIAL.” Such information produced
23 by Non-Parties in connection with this litigation is protected by the remedies and relief
24 provided by this Order. Nothing in these provisions should be construed as prohibiting a
25 Non-Party from seeking additional protections.
26 (b) In the event that a Party is required, by a valid discovery request, to produce
27 a Non-Party’s confidential information in its possession, and the Party is subject to an
28 agreement with the Non-Party not to produce the Non-Party’s confidential information,
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 10 of 14 Page ID #:336
1 then the Party shall:
2 (1) promptly notify in writing the Requesting Party and the Non Party that
3 some or all of the information requested is subject to a confidentiality agreement with a
4 Non-Party;
5 (2) promptly provide the Non-Party with a copy of the Stipulated Protective
6 Order in this Action, the relevant discovery request(s), and a reasonably specific
7 description of the information requested; and
8 (3) make the information requested available for inspection by the Non-Party, if
9 requested.
10 (c) If the Non-Party fails to seek a protective order from this court within 14
11 days of receiving the notice and accompanying information, the Receiving Party may
12 produce the Non-Party’s confidential information responsive to the discovery request. If
13 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
14 information in its possession or control that is subject to the confidentiality agreement
15 with the Non-Party before a determination by the court. Absent a court order to the
16 contrary, the Non-Party shall bear the burden and expense of seeking protection in this
17 court of its Protected Material.
18 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
19 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
20 Protected Material to any person or in any circumstance not authorized under this
21 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
22 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
23 all unauthorized copies of the Protected Material, (c) inform the person or persons to
24 whom unauthorized disclosures were made of all the terms of this Order, and (d) request
25 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
26 that is attached hereto as Exhibit A.
27 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
28 PROTECTED MATERIAL
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 11 of 14 Page ID #:337
1 When a Producing Party gives notice to Receiving Parties that certain
2 inadvertently produced material is subject to a claim of privilege or other protection, the
3 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure
4 26(b)(5)(B). This provision is not intended to modify whatever procedure may be
5 established in an e-discovery order that provides for production without prior privilege
6 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach
7 an agreement on the effect of disclosure of a communication or information covered by
8 the attorney-client privilege or work product protection, the parties may incorporate their
9 agreement in the stipulated protective order submitted to the court.
10 12. MISCELLANEOUS
11 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
12 person to seek its modification by the Court in the future.
13 12.2 Right to Assert Other Objections. By stipulating to the entry of this
14 Protective Order no Party waives any right it otherwise would have to object to
15 disclosing or producing any information or item on any ground not addressed in this
16 Stipulated Protective Order. Similarly, no Party waives any right to object on any ground
17 to use in evidence of any of the material covered by this Protective Order.
18 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected
19 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
20 under seal pursuant to a court order authorizing the sealing of the specific Protected
21 Material at issue. If a Party's request to file Protected Material under seal is denied by the
22 court, then the Receiving Party may file the information in the public record unless
23 otherwise instructed by the court.
24 13. FINAL DISPOSITION
25 After the final disposition of this Action, as defined in paragraph 4, within 60 days
26 of a written request by the Designating Party, each Receiving Party must return all
27 Protected Material to the Producing Party or destroy such material. As used in this
28 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 12 of 14 Page ID #:338
1 summaries, and any other format reproducing or capturing any of the Protected Material.
2 Whether the Protected Material is returned or destroyed, the Receiving Party must
3 submit a written certification to the Producing Party (and, if not the same person or
4 entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category,
5 where appropriate) all the Protected Material that was returned or destroyed and (2)
6 affirms that the Receiving Party has not retained any copies, abstracts, compilations,
7 summaries or any other format reproducing or capturing any of the Protected Material.
8 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
9 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
10 correspondence, deposition and trial exhibits, expert reports, attorney work product, and
11 consultant and expert work product, even if such materials contain Protected Material.
12 Any such archival copies that contain or constitute Protected Material remain subject to
13 this Protective Order as set forth in Section 4 (DURATION).
14 14. Any violation of this Order may be punished by any and all appropriate
15 measures including, without limitation, contempt proceedings and/or monetary
16 sanctions.
17 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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19 DATED: October 20, 2022
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21 /s/ HIEN T. NGUYEN
Hien T. Nguyen
22 Pro se Plaintiff
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 13 of 14 Page ID #:339
1 DATED: October 20, 2022
2 E. MARTIN ESTRADA
United States Attorney
3 DAVID M. HARRIS
Assistant United States Attorney
4 Chief, Civil Division
JOANNE S. OSINOFF
5 Assistant United States Attorney
Chief, General Civil Section
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7 /s/ Joseph W. Tursi
8 JOSEPH W. TURSI
Assistant United States Attorney
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Attorneys for Defendant Carlos Del Toro, in
10 his official capacity as Secretary of the Navy
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13 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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15 DATED:__N_o_v_e_m_b_e_r_ 1_,_ 2_0_2_2_________
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/ s / Sagar
17 HONORABLE ALKA SAGAR
United States Magistrate Judge
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Case 2:21-cv-04327-VAP-AS Document 62 Filed 11/01/22 Page 14 of 14 Page ID #:340
1 EXHIBIT A
2 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 that I
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have read in its entirety and understand the Stipulated Protective Order that was issued
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by the United States District Court for the Central District of California on [date] in the
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case of Hien T. Nguyen v. Thomas W. Harker CV21-04327-VAP (ASx). I agree to
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comply with and to be bound by all the terms of this Stipulated Protective Order and I
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understand and acknowledge that failure to so comply could expose me to sanctions
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and punishment in the nature of contempt. I solemnly promise that I will not disclose
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in any manner any information or item that is subject to this Stipulated Protective Order
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to any person or entity except in strict 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
17
type full name] of _______________________________________ [print or type full
18
address and telephone number] as my California agent for service of process in
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connection with this action or any proceedings related to enforcement of this Stipulated
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Protective Order.
21
Date: ______________________________
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23 City and State where sworn and signed: ___________________________________
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Printed name: _____________________________________________
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26 Signature: ________________________________________________
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