distinguishing “good cause” showing for 26 sealing documents produced in discovery from “compelling reasons” standard when 27 merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for 26 sealing documents produced in discovery from “compelling reasons” standard when 27 merits-related documents are part of court record
- even stipulated protective orders require 13 good cause showing
Written by the judges who cited it.
The opinion
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 1 of 20 Page ID #:147
1
2
3
4
5
6
7
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11
12 CLASSIC CONCEPTS, INC. dba
CLASSIC HOME, a New Mexico Case No.: 2:22-cv-03822-DMG-PD
13 corporation,
STIPULATED PROTECTIVE
14
Plaintiff, ORDER1
15
v.
16
17 BUNGALOW FIVE, LLC,
a Delaware limited liability company
18
Defendant.
19
20
21
1. A. PURPOSES AND LIMITATIONS
22
Discovery in this action is likely to involve production of confidential,
23
proprietary, or private information for which special protection from public
24
disclosure and from use for any purpose other than prosecuting this litigation may be
25
warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter
26
27
1 This Stipulated Protective Order is substantially based on the model protective
28 order provided under Magistrate Judge Patricia Donahue’s Procedures.
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 2 of 20 Page ID #:148
1 the following Stipulated Protective Order. The parties acknowledge that this Order
2 does not confer blanket protections on all disclosures or responses to discovery and
3 that the protection it affords from public disclosure and use extends only to the
4 limited information or items that are entitled to confidential treatment under the
5 applicable legal principles.
6 B. GOOD CAUSE STATEMENT
7 This action is likely to involve trade secrets, customer and pricing lists and
8 other valuable research, development, commercial, financial, technical and/or
9 proprietary information for which special protection from public disclosure and from
10 use for any purpose other than prosecution of this action is warranted. Such
11 confidential and proprietary materials and information consist of, among other
12 things, confidential business or financial information, information regarding
13 confidential business practices, or other confidential research, development, or
14 commercial information (including information implicating privacy rights of third
15 parties), information otherwise generally unavailable to the public, or which may be
16 privileged or otherwise protected from disclosure under state or federal statutes,
17 court rules, case decisions, or common law. Accordingly, to expedite the flow of
18 information, to facilitate the prompt resolution of disputes over confidentiality of
19 discovery materials, to adequately protect information the parties are entitled to keep
20 confidential, to ensure that the parties are permitted reasonable necessary uses of
21 such material in preparation for and in the conduct of trial, to address their handling
22 at the end of the litigation, and serve the ends of justice, a protective order for such
23 information is justified in this matter. It is the intent of the parties that information
24 will not be designated as confidential for tactical reasons and that nothing be so
25 designated without a good faith belief that it has been maintained in a confidential,
26 non-public manner, and there is good cause why it should not be part of the public
27 record of this case.
28
2
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 3 of 20 Page ID #:149
1 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
2 The parties further acknowledge, as set forth in Section 12.3, below, that this
3 Stipulated Protective Order does not entitle them to file confidential information
4 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
5 the standards that will be applied when a party seeks permission from the court to
6 file material under seal.
7 There is a strong presumption that the public has a right of access to judicial
8 proceedings and records in civil cases. In connection with non-dispositive motions,
9 good cause must be shown to support a filing under seal. See Kamakana v. City and
10 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
11 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
12 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require
13 good cause showing), and a specific showing of good cause or compelling reasons
14 with proper evidentiary support and legal justification, must be made with respect to
15 Protected Material that a party seeks to file under seal. The parties’ mere designation
16 of Disclosure or Discovery Material as CONFIDENTIAL or HIGHLY
17 CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY does not—without
18 the submission of competent evidence by declaration, establishing that the material
19 sought to be filed under seal qualifies as confidential, privileged, or otherwise
20 protectable—constitute good cause.
21 Further, if a party requests sealing related to a dispositive motion or trial, then
22 compelling reasons, not only good cause, for the sealing must be shown, and the
23 relief sought shall be narrowly tailored to serve the specific interest to be protected.
24 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each
25 item or type of information, document, or thing sought to be filed or introduced under
26 seal in connection with a dispositive motion or trial, the party seeking protection
27 must articulate compelling reasons, supported by specific facts and legal
28 justification, for the requested sealing order. Again, competent evidence supporting
3
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 4 of 20 Page ID #:150
1 the application to file documents under seal must be provided by declaration.
2 Any document that is not confidential, privileged, or otherwise protectable in
3 its entirety will not be filed under seal if the confidential portions can be redacted. If
4 documents can be redacted, then a redacted version for public viewing, omitting only
5 the confidential, privileged, or otherwise protectable portions of the document, shall
6 be filed. Any application that seeks to file documents under seal in their entirety
7 should include an explanation of why redaction is not feasible.
8
9 2. DEFINITIONS
10 2.1 Action: This pending federal lawsuit.
11 2.2 Challenging Party: a Party or Non-Party that challenges
12 the designation of information or items under this Order.
13 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
14 how it is generated, stored or maintained) or tangible things that qualify for
15 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the
16 Good Cause Statement.
17 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
18 their support staff).
19 2.5 Designating Party: a Party or Non-Party that designates information or
20 items that it produces in disclosures or in responses to discovery as
21 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’
22 EYES ONLY.”
23 2.6 Disclosure or Discovery Material: all items or information, regardless
24 of the medium or manner in which it is generated, stored, or maintained (including,
25 among other things, testimony, transcripts, and tangible things), that are produced or
26 generated in disclosures or responses to discovery in this matter.
27 2.7 Expert: a person with specialized knowledge or experience in a matter
28 pertinent to the litigation who has been retained by a Party or its counsel to serve as
4
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 5 of 20 Page ID #:151
1 an expert witness or as a consultant in this Action.
2 2.8 "HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
3 ONLY” Information or Items: extremely sensitive “CONFIDENTIAL Information
4 or Items,” disclosure of which to another Party or Non-Party would create a
5 substantial risk of serious harm that could not be avoided by less restrictive means.
6 2.9 House Counsel: attorneys who are employees of a party to this Action.
7 House Counsel does not include Outside Counsel of Record or any other outside
8 counsel.
9 2.10 Non-Party: any natural person, partnership, corporation, association, or
10 other legal entity not named as a Party to this action.
11 2.11 Outside Counsel of Record: attorneys who are not employees of a party
12 to this Action but are retained to represent or advise a party to this Action and have
13 appeared in this Action on behalf of that party or are affiliated with a law firm which
14 has appeared on behalf of that party, and includes support staff.
15 2.12 Party: any party to this Action, including all of its officers, directors,
16 employees, consultants, retained experts, and Outside Counsel of Record (and their
17 support staffs).
18 2.13 Producing Party: a Party or Non-Party that produces Disclosure or
19 Discovery Material in this Action.
20 2.14 Professional Vendors: persons or entities that provide litigation support
21 services (e.g., photocopying, videotaping, translating, preparing exhibits or
22 demonstrations, and organizing, storing, or retrieving data in any form or medium)
23 and their employees and subcontractors.
24 2.15 Protected Material: any Disclosure or Discovery Material that is
25 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE
26 ATTORNEYS’ EYES ONLY.”
27 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
28 from a Producing Party.
5
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 6 of 20 Page ID #:152
1
2 3. SCOPE
3 The protections conferred by this Stipulation and Order cover not only
4 Protected Material (as defined above), but also (1) any information copied or
5 extracted from Protected Material; (2) all copies, excerpts, summaries, or
6 compilations of Protected Material; and (3) any testimony, conversations, or
7 presentations by Parties or their Counsel that might reveal Protected Material.
8 Any use of Protected Material at trial shall be governed by the orders of the
9 trial judge. This Order does not govern the use of Protected Material at trial.
10
11 4. DURATION
12
FINAL DISPOSITION of the action is defined as the conclusion of any
13
appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
14
has run. Except as set forth below, the terms of this protective order apply through
15
FINAL DISPOSITION of the action. The parties may stipulate that they will be
16
contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
17
but will have to file a separate action for enforcement of the agreement once all
18
proceedings in this case are complete.
19
Once a case proceeds to trial, information that was designated as
20
CONFIDENTIAL or HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’
21
EYES ONLY or maintained pursuant to this protective order used or introduced as
22
an exhibit at trial becomes public and will be presumptively available to all members
23
of the public, including the press, unless compelling reasons supported by specific
24
factual findings to proceed otherwise are made to the trial judge in advance of the
25
trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for
26
sealing documents produced in discovery from “compelling reasons” standard when
27
merits-related documents are part of court record). Accordingly, for such materials,
28
6
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 7 of 20 Page ID #:153
1 the terms of this protective order do not extend beyond the commencement of the
2 trial.
3
4 5. DESIGNATING PROTECTED MATERIAL
5 5.1 Exercise of Restraint and Care in Designating Material for Protection.
6 Each Party or Non-Party that designates information or items for protection under
7 this Order must take care to limit any such designation to specific material that
8 qualifies under the appropriate standards. The Designating Party must designate for
9 protection only those parts of material, documents, items, or oral or written
10 communications that qualify so that other portions of the material, documents, items,
11 or communications for which protection is not warranted are not swept unjustifiably
12 within the ambit of this Order.
13 Mass, indiscriminate, or routinized designations are prohibited. Designations
14 that are shown to be clearly unjustified or that have been made for an improper
15 purpose (e.g., to unnecessarily encumber the case development process or to impose
16 unnecessary expenses and burdens on other parties) may expose the Designating
17 Party to sanctions.
18 If it comes to a Designating Party’s attention that information or items that it
19 designated for protection do not qualify for protection, that Designating Party must
20 promptly notify all other Parties that it is withdrawing the inapplicable designation.
21 5.2 Manner and Timing of Designations. Except as otherwise provided in
22 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
23 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
24 under this Order must be clearly so designated before the material is disclosed or
25 produced.
26 Designation in conformity with this Order requires:
27 (a) for information in documentary form (e.g., paper or electronic
28 documents, but excluding transcripts of depositions or other pretrial or trial
7
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 8 of 20 Page ID #:154
1 proceedings), that the Producing Party affix at a minimum, the legend
2 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’
3 EYES ONLY,” to each page that contains protected material. If only a portion or
4 portions of the material on a page qualifies for protection, the Producing Party also
5 must clearly identify the protected portion(s) (e.g., by making appropriate markings
6 in the margins).
7 A Party or Non-Party that makes original documents available for inspection
8 need not designate them for protection until after the inspecting Party has indicated
9 which documents it would like copied and produced. During the inspection and
10 before the designation, all of the material made available for inspection shall be
11 deemed “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
12 After the inspecting Party has identified the documents it wants copied and produced,
13 the Producing Party must determine which documents, or portions thereof, qualify
14 for protection under this Order. Then, before producing the specified documents, the
15 Producing Party must affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
16 – OUTSIDE ATTORNEYS’ EYES ONLY” legend to each page that contains
17 Protected Material. If only a portion or portions of the material on a page qualifies
18 for protection, the Producing Party also must clearly identify the protected portion(s)
19 (e.g., by making appropriate markings in the margins).
20 (b) for testimony given in depositions or in other proceedings that the
21 Designating Party identify the Disclosure or Discovery Material on the record, before
22 the close of the deposition, hearing, or other proceeding, all protected testimony and
23 specify the level of protection being asserted. When it is impractical to identify
24 separately each portion of testimony that is entitled to protection and it appears that
25 substantial portions of the testimony may qualify for protection, the Designating Party
26 may invoke on the record (before the deposition, hearing, or other proceeding is
27 concluded) a right to have up to 21 days to identify the specific portions of the
28 testimony as to which protection is sought and to specify the level of protection being
8
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 9 of 20 Page ID #:155
1 asserted. Only those portions of the testimony that are appropriately designated for
2 protection within the 21 days shall be covered by the provisions of this Stipulated
3 Protective Order. Alternatively, a Designating Party may specify, at the deposition or
4 up to 21 days afterwards if that period is properly invoked, that the entire transcript
5 shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE
6 ATTORNEYS’ EYES ONLY.”
7 (c) for information produced in some form other than documentary and for
8 any other tangible items, that the Producing Party affix in a prominent place on the
9 exterior of the container or containers in which the information is stored the legend
10 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’
11 EYES ONLY/” If only a portion or portions of the information warrants protection,
12 the Producing Party, to the extent practicable, shall identify the protected portion(s)
13 and specify the level of protection being asserted.
14 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
15 failure to designate qualified information or items does not, standing alone, waive
16 the Designating Party’s right to secure protection under this Order for such material.
17 Upon timely correction of a designation, the Receiving Party must make reasonable
18 efforts to assure that the material is treated in accordance with the provisions of this
19 Order.
20
21 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
22 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
23 designation of confidentiality at any time that is consistent with the Court’s
24 Scheduling Order.
25 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
26 resolution process under Local Rule 37.1 et seq.
27 6.3 The burden of persuasion in any such challenge proceeding shall be on
28 the Designating Party. Frivolous challenges, and those made for an improper purpose
9
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 10 of 20 Page ID #:156
1 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
2 expose the Challenging Party to sanctions. Unless the Designating Party has waived
3 or withdrawn the confidentiality designation, all parties shall continue to afford the
4 material in question the level of protection to which it is entitled under the Producing
5 Party’s designation until the Court rules on the challenge.
6
7 7. ACCESS TO AND USE OF PROTECTED MATERIAL
8 7.1 Basic Principles. A Receiving Party may use Protected Material that is
9 disclosed or produced by another Party or by a Non-Party in connection with this
10 Action only for prosecuting, defending, or attempting to settle this Action. Such
11 Protected Material may be disclosed only to the categories of persons and under the
12 conditions described in this Order. When the Action has been terminated, a
13 Receiving Party must comply with the provisions of section 13 below (FINAL
14 DISPOSITION).
15 Protected Material must be stored and maintained by a Receiving Party at a
16 location and in a secure manner that ensures that access is limited to the persons
17 authorized under this Order.
18 7.2 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
10
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 11 of 20 Page ID #:157
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 the witness signs the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
12 agreed by the Designating Party or ordered by the court. Pages of transcribed
13 deposition testimony or exhibits to depositions that reveal Protected Material may
14 be separately bound by the court reporter and may not be disclosed to anyone except
15 as permitted under this Stipulated Protective Order; and
16 (i) any mediator or settlement officer, and their supporting personnel,
17 mutually agreed upon by any of the parties engaged in settlement discussions.
18 7.3 Disclosure of “HIGHLY CONFIDENTIAL – OUTSIDE
19 ATTORNEYS’ EYES ONLY” Information or Items. Unless otherwise ordered by
20 the court or permitted in writing by the Designating Party, a Receiving Party may
21 disclose any information or item designated “HIGHLY CONFIDENTIAL –
22 OUTSIDE ATTORNEYS’ EYES ONLY” only to:
23 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
24 employees of said Outside Counsel of Record to whom it is reasonably necessary to
25 disclose the information for this Action;
26 (b) Experts (as defined in this Order) of the Receiving Party (1) to whom
27 disclosure is reasonably necessary for this Action, (2) who have signed the
28
11
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 12 of 20 Page ID #:158
1 “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom the
2 procedures set forth in Section 7.4, below, have been followed;
3 (c) the court and its personnel;
4 (d) court reporters and their staff;
5 (e) professional jury or trial consultants, mock jurors, and Professional Vendors
6 to whom disclosure is reasonably necessary for this Action and who have signed the
7 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
8 (f) the author or recipient of a document containing the information or a
9 custodian or other person who otherwise possessed or knew the information; and
10 (g) any mediator or settlement officer, and their supporting personnel, mutually
11 agreed upon by any of the parties engaged in settlement discussions.
12 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
13 CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” Information or
14 Items.
15 (a) Unless otherwise ordered by the court or agreed to in writing by the
16 Designating Party, a Receiving Party that seeks to disclose to an Expert any sensitive
17 business information concerning the Designating Party’s customers or financials that
18 has been designated “HIGHLY CONFIDENTIAL –
19 OUTSIDE ATTORNEYS’ EYES ONLY” pursuant to Section 7.3(b) first must make
20 a written request to the Designating Party that (1) identifies the general categories of
21 “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY”
22 information that the Receiving Party seeks permission to disclose to the Expert, (2)
23 sets forth the full name of the Expert and the city and state of his or her primary
24 residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the
25 Expert’s current employer(s), (5) identifies each person or entity from whom the
26 Expert has received compensation or funding for work in his or her areas of expertise
27 or to whom the Expert has provided professional services, including in connection
28 with a litigation, at any time during the preceding five years, and (6) identifies (by
12
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 13 of 20 Page ID #:159
1 name and number of the case, filing date, and location of court) any litigation in
2 connection with which the Expert has offered expert testimony, including through a
3 declaration, report, or testimony at a deposition or trial, during the preceding five
4 years.
5 (b) A Receiving Party that makes a request and provides the information
6 specified in the preceding respective paragraph may disclose the subjected Protected
7 Material to the identified Expert unless, within 14 days of delivering the request, the
8 Receiving Party receives a written objection from the Designating Party. Any such
9 objection must set forth in detail the grounds on which it is based.
10 (c) A Receiving Party that receives a timely written objection must meet
11 and confer with the Designating Party (through direct voice to voice dialogue) to try
12 to resolve the matter by agreement within seven days of the written objection. If no
13 agreement is reached, the Receiving Party seeking to make the disclosure to the
14 Expert may file a motion seeking permission from the court to do so. Any such
15 motion must describe the circumstances with specificity, set forth in detail the
16 reasons why the disclosure to the Expert is reasonably necessary, assess the risk of
17 harm that the disclosure would entail, and suggest any additional means that could
18 be used to reduce that risk. In addition, any such motion must be accompanied by a
19 competent declaration describing the parties’ efforts to resolve the matter by
20 agreement (i.e., the extent and content of the meet and confer discussions) and setting
21 forth the reasons advanced by the Designating Party for its refusal to approve the
22 disclosure. In any such proceeding, the Designating Party opposing disclosure to the
23 Expert shall bear the burden of proving that the risk of harm that the disclosure would
24 entail (under the safeguards proposed) outweighs the Receiving Party’s need to
25 disclose the Protected Material to its Expert.
26
27
28
13
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 14 of 20 Page ID #:160
1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
2 IN OTHER LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation
4 that compels disclosure of any information or items designated in this Action as
5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES
6 ONLY,” that Party must:
7
(a) promptly notify in writing the Designating Party. Such notification shall
8
include a copy of the subpoena or court order;
9
(b) promptly notify in writing the party who caused the subpoena or order
10
to issue in the other litigation that some or all of the material covered by the subpoena
11
or order is subject to this Protective Order. Such notification shall include a copy of
12
this Stipulated Protective Order; and
13
(c) cooperate with respect to all reasonable procedures sought to be pursued
14
by the Designating Party whose Protected Material may be affected.
15
If the Designating Party timely seeks a protective order, the Party served
16
with the subpoena or court order shall not produce any information designated in this
17
action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’
18
EYES ONLY” before a determination by the court from which the subpoena or order
19
issued, unless the Party has obtained the Designating Party’s permission. The
20
Designating Party shall bear the burden and expense of seeking protection in that
21
court of its confidential material and nothing in these provisions should be construed
22
as authorizing or encouraging a Receiving Party in this Action to disobey a lawful
23
directive from another court.
24
25
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT
26
TO BE PRODUCED IN THIS LITIGATION
27
(a) The terms of this Order are applicable to information produced by a
28
14
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 15 of 20 Page ID #:161
1 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
2 CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.” Such information
3 produced by Non-Parties in connection with this litigation is protected by the
4 remedies and relief provided by this Order. Nothing in these provisions should be
5 construed as prohibiting a Non-Party from seeking additional protections.
6 (b) In the event that a Party is required, by a valid discovery request, to
7 produce a Non-Party’s confidential information in its possession, and the Party is
8 subject to an agreement with the Non-Party not to produce the Non-Party’s
9 confidential information, then the Party shall:
10 (1) promptly notify in writing the Requesting Party and the Non-Party
11 that some or all of the information requested is subject to a confidentiality agreement
12 with a Non-Party;
13 (2) promptly provide the Non-Party with a copy of the Stipulated
14 Protective Order in this Action, the relevant discovery request(s), and a reasonably
15 specific description of the information requested; and
16 (3) make the information requested available for inspection by the
17 Non-Party, if requested.
18 (c) If the Non-Party fails to seek a protective order from this court within
19 14 days of receiving the notice and accompanying information, the Receiving Party
20 may produce the Non-Party’s confidential information responsive to the discovery
21 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
22 not produce any information in its possession or control that is subject to the
23 confidentiality agreement with the Non-Party before a determination by the court.
24 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
25 of seeking protection in this court of its Protected Material.
26
27 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
28
15
Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 16 of 20 Page ID #:162
1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
2 Protected Material to any person or in any circumstance not authorized under this
3 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
4 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
5 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
6 persons to whom unauthorized disclosures were made of all the terms of this Order,
7 and (d) request such person or persons to execute the “Acknowledgment and
8 Agreement to Be Bound” that is attached hereto as Exhibit A.
9
10 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
11 PROTECTED MATERIAL
12
When a Producing Party gives notice to Receiving Parties that certain
13
inadvertently produced material is subject to a claim of privilege or other protection,
14
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15
Procedure 26(b)(5)(B). Pursuant to the parties’ agreed ESI protocol, the inadvertent
16
production of a privileged or work product protected ESI is not a waiver in the
17
pending case or in any other federal or state proceeding. See Dkt. 23 (Joint Report
18
26(f) Report, Section j(3)).
19
20
12. MISCELLANEOUS
21
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
22
person to seek its modification by the Court in the future.
23
12.2 Right to Assert Other Objections. By stipulating to the entry of this
24
Protective Order no Party waives any right it otherwise would have to object to
25
disclosing or producing any information or item on any ground not addressed in this
26
Stipulated Protective Order. Similarly, no Party waives any right to object on any
27
ground to use in evidence of any of the material covered by this Protective Order.
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Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 17 of 20 Page ID #:163
1 12.3 Filing Protected Material. A Party that seeks to file under seal any
2 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
3 only be filed under seal pursuant to a court order authorizing the sealing of the
4 specific Protected Material at issue. If a Party's request to file Protected Material
5 under seal is denied by the court, then the Receiving Party may file the information
6 in the public record unless otherwise instructed by the court.
7
8 13. FINAL DISPOSITION
9 After the final disposition of this Action, as defined in paragraph 4, within 60
10 days of a written request by the Designating Party, each Receiving Party must return
11 all Protected Material to the Producing Party or destroy such material. As used in
12 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
13 summaries, and any other format reproducing or capturing any of the Protected
14 Material. Whether the Protected Material is returned or destroyed, the Receiving
15 Party must submit a written certification to the Producing Party (and, if not the same
16 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
17 (by category, where appropriate) all the Protected Material that was returned or
18 destroyed and (2) affirms that the Receiving Party has not retained any copies,
19 abstracts, compilations, summaries or any other format reproducing or capturing any
20 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
21 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
22 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
23 reports, attorney work product, and consultant and expert work product, even if such
24 materials contain Protected Material. Any such archival copies that contain or
25 constitute Protected Material remain subject to this Protective Order as set forth in
26 Section 4 (DURATION).
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Case ¥:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 18o0f20 Page ID #:164
1 || 14. Any violation of this Order may be punished by any and all appropriate
2 || measures including, without limitation, contempt proceedings and/or monetary
3 || sanctions.
5 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.
7 || DATED: November 30, 2022
9 || s/Scott Yoo
10 Attorneys for Plaintiff
1]
□ DATED: November 30, 2022
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14 s/Scott P. Shaw
Attorneys for Defendant
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'” | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED: December 1, 2022
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21 Pataca Oona hoe
22 || Patricia Donahue
74 United States Magistrate Judge
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Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 19 of 20 Page ID #:165
1
ATTESTATION
2
I hereby attest that all signatures listed above, on whose behalf this
3
Stipulation is submitted, have concurred in the filing’s contents and authorized the
4
filing.
5
6
7 DATED: December 1, 2022 By: s/ Scott Shaw
Scott P. Shaw (Bar No. 223592)
8
sshaw@merchantgould.com
9 MERCHANT & GOULD P.C.
8383 Wilshire Blvd., Suite 935
10 Beverly Hills, California 90211
Telephone: (949) 330-0202
11 Facsimile: (612) 332-9081
12
Attorneys for Defendant
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Case 2:22-cv-03822-DMG-PD Document 26 Filed 12/01/22 Page 20 of 20 Page ID #:166
1 EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
2
3
I, ________________________ [print or type full name], of
4
_________________ [print or type full address], declare under penalty of perjury
5
that I have read in its entirety and understand the Stipulated Protective Order that
6
was issued by the United States District Court for the Central District of California
7
on [date] in the case of CLASSIC CONCEPTS, INC. dba CLASSIC HOME v.
8
BUNGALOW FIVE, LLC, Case No.: 22-cv-03822-DMG-PD. I agree to comply
9
with and to be bound by all the terms of this Stipulated Protective Order and I
10
understand and acknowledge that failure to so comply could expose me to sanctions
11
and punishment in the nature of contempt. I solemnly promise that I will not
12
disclose in any manner any information or item that is subject to this Stipulated
13
Protective Order to any person or entity except in strict compliance with the
14
provisions of this Order.
15
I further agree to submit to the jurisdiction of the United States District Court for
16
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 ________________________ [print or
19
type full name] of _________ [print or type full address and telephone number] as
20
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 Date: __________________________
24
City and State where sworn and signed: _____________________________
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26
Printed name: ____________________________________
27
28 Signature: ________________________________
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