distinguishing “good cause” showing for sealing documents produced in discovery from “compelling reasons” standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” showing for sealing documents produced in discovery from “compelling reasons” standard when merits-related documents are part of court record
- even stipulated protective orders require good cause showing
Written by the judges who cited it.
The opinion
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Case 2:22-cv-08016-MCS-RAO Document 18 Filed 01/11/23 Page 1 of 16 Page ID #:183
JUDITH SHOPHET SIDKOFF (SBN 267048)
judith.sidkoff@dentons.com
DENTONS US LLP
601 South Figueroa Street
Suite 2500
Los Angeles, CA 90017-5704
Telephone: 213 623 9300
Facsimile: 213 623 9924
Attorneys for Defendants
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, and PRUCO LIFE INSURANCE COMPANY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MICHAEL P. RUBIN, No. 2:22-cv-08016-MCS-RAOx
Plaintiff, STIPULATED PROTECTIVE
ORDER1
v.
THE PRUDENTIAL INSURANCE
DISCOVERY MATTER
COMPANY OF AMERICA, a
corporation; PRUCO LIFE
Judge: Mark C. Scarsi
INSURANCE COMPANY, a Magistrate Judge: Rozella A. Oliver
corporation, and DOES 1-50,
Date Action Filed: 11/2/2022
Defendant.
1. A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,
proprietary or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that this
1 This Stipulated Protective Order is substantially based on the model protective order provided
under Magistrate Judge Rozella A. Oliver’s Procedures.
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Order does not confer blanket protections on all disclosures or responses to
discovery and that the protection it affords from public disclosure and use extends
only to the limited information or items that are entitled to confidential treatment
under the applicable legal principles.
B. GOOD CAUSE STATEMENT
This action is likely to involve the production of protected health
information, private personal information, claims handling procedures, trade
secrets, development, commercial, financial, technical and/or proprietary
information for which special protection from public disclosure and from use for
any purpose other than prosecution of this action is warranted. Such confidential
and proprietary materials and information consist of, among other things,
confidential medical records, personal financial information, insurer handling of
claims at issue in the Action, business or financial information, information
regarding confidential business practices, or other confidential research,
development, or commercial information (including information implicating
privacy rights of third parties), information otherwise generally unavailable to the
public, or which may be privileged or otherwise protected from disclosure under
state or federal statutes, court rules, case decisions, or common law. Accordingly,
to expedite the flow of information, to facilitate the prompt resolution of disputes
over confidentiality of discovery materials, to adequately protect information the
parties are entitled to keep confidential, to ensure that the parties are permitted
reasonable necessary uses of such material in preparation for and in the conduct of
trial, to address their handling at the end of the litigation, and serve the ends of
justice, a protective order for such information is justified in this matter. It is the
intent of the parties that information will not be designated as confidential for
tactical reasons and that nothing be so designated without a good faith belief that it
has been maintained in a confidential, non-public manner, and there is good cause
why it should not be part of the public record of this case.
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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
The parties further acknowledge, as set forth in Section 12.3, below, that this
Stipulated Protective Order does not entitle them to file confidential information
under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
and the standards that will be applied when a party seeks permission from the court
to file material under seal.
There is a strong presumption that the public has a right of access to judicial
proceedings and records in civil cases. In connection with non-dispositive motions,
good cause must be shown to support a filing under seal. See Kamakana v. City
and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen.
Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective
orders require good cause showing), and a specific showing of good cause or
compelling reasons with proper evidentiary support and legal justification, must be
made with respect to Protected Material that a party seeks to file under seal. The
parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL
INFORMATION does not—without the submission of competent evidence by
declaration, establishing that the material sought to be filed under seal qualifies as
confidential, privileged, or otherwise protectable—constitute good cause.
Further, if a party requests sealing related to a dispositive motion or trial,
then compelling reasons, not only good cause, for the sealing must be shown, and
the relief sought shall be narrowly tailored to serve the specific interest to be
protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.
2010). For each item or type of information, document, or thing sought to be filed
or introduced under seal in connection with a dispositive motion or trial, the party
seeking protection must articulate compelling reasons, supported by specific facts
and legal justification, for the requested sealing order. Again, competent evidence
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supporting the application to file documents under seal must be provided by
declaration.
Any document that is not confidential, privileged, or otherwise protectable in
its entirety will not be filed under seal if the confidential portions can be redacted.
If documents can be redacted, then a redacted version for public viewing, omitting
only the confidential, privileged, or otherwise protectable portions of the document
shall be filed. Any application that seeks to file documents under seal in their
entirety should include an explanation of why redaction is not feasible.
2. DEFINITIONS
2.1 Action: Michael P. Rubin v. The Prudential Insurance Company of
America et al, Case No. 2:22-cv-08016-MCS-RAOx.
2.2 Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
2.3 “CONFIDENTIAL” Information or Items: information (regardless of
how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
their support staff).
2.5 Designating Party: a Party or Non-Party that designates information or
items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL INFORMATION.”
2.6 Disclosure or Discovery Material: all items or information, regardless
of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things) that are produced or
generated in disclosures or responses to discovery in this matter.
2.7 Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve as
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an expert witness or as a consultant in this Action.
2.8 House Counsel: attorneys who are employees of a party to this Action.
House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.9 Non-Party: any natural person, partnership, corporation, association or
other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a
party to this Action but are retained to represent or advise a party to this Action and
have appeared in this Action on behalf of that party or are affiliated with a law firm
that has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL INFORMATION.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
3. SCOPE
The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
4. DURATION
Once a case proceeds to trial, information that was designated as
CONFIDENTIAL INFORMATION or maintained pursuant to this protective order
used or introduced as an exhibit at trial becomes public and will be presumptively
available to all members of the public, including the press, unless compelling
reasons supported by specific factual findings to proceed otherwise are made to the
trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
(distinguishing “good cause” showing for sealing documents produced in discovery
from “compelling reasons” standard when merits-related documents are part of
court record). Accordingly, the terms of this protective order do not extend beyond
the commencement of the trial.
5. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items or oral or written
communications that qualify so that other portions of the material, documents,
items or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order.
Mass, indiscriminate or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to
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impose unnecessary expenses and burdens on other parties) may expose the
Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2 Manner and Timing of Designations. Except as otherwise provided in
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
under this Order must be clearly so designated before the material is disclosed or
produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL INFORMATION” (hereinafter “CONFIDENTIAL
INFORMATION legend”), to each page that contains protected material. If only a
portion of the material on a page qualifies for protection, the Producing Party also
must clearly identify the protected portion(s) (e.g., by making appropriate markings
in the margins).
A Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has indicated
which documents it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL INFORMATION.” After the inspecting Party has
identified the documents it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection under this
Order. Then, before producing the specified documents, the Producing Party must
affix the “CONFIDENTIAL INFORMATION legend” to each page that contains
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Protected Material. If only a portion of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party identifies
the Disclosure or Discovery Material on the record, before the close of the
deposition all protected testimony.
(c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information is stored the legend
“CONFIDENTIAL INFORMATION.” If only a portion or portions of the
information warrants protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such
material. Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37.1 et seq.
6.3 The burden of persuasion in any such challenge proceeding shall be on
the Designating Party. Frivolous challenges, and those made for an improper
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. Unless the Designating
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Party has waived or withdrawn the confidentiality designation, all parties shall
continue to afford the material in question the level of protection to which it is
entitled under the Producing Party’s designation until the Court rules on the
challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2 Disclosure of “CONFIDENTIAL INFORMATION” or Items. Unless
otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated
“CONFIDENTIAL INFORMATION” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
as employees of said Outside Counsel of Record to whom it is reasonably necessary
to disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
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(e) court reporters and their staff;
(f) professional jury or trial consultants, mock jurors, and Professional
Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
requests that the witness sign the form attached as Exhibit A hereto; and (2) they
will not be permitted to keep any confidential information unless they sign the
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
agreed by the Designating Party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal Protected Material may
be separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL INFORMATION,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena
or order is subject to this Protective Order. Such notification shall include a copy
of this Stipulated Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL INFORMATION” before a determination by the court
from which the subpoena or order issued, unless the Party has obtained the
Designating Party’s permission. The Designating Party shall bear the burden and
expense of seeking protection in that court of its confidential material and nothing
in these provisions should be construed as authorizing or encouraging a Receiving
Party in this Action to disobey a lawful directive from another court.
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by
a Non-Party in this Action and designated as “CONFIDENTIAL
INFORMATION.” Such information produced by Non-Parties in connection with
this litigation is protected by the remedies and relief provided by this Order.
Nothing in these provisions should be construed as prohibiting a Non-Party from
seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request,
to produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the
Non-Party that some or all of the information requested is subject to a
confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the
Stipulated Protective Order in this Action, the relevant discovery request(s), and a
reasonably specific description of the information requested; and
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(3) make the information requested available for inspection by
the Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive
to the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that
is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party
shall bear the burden and expense of seeking protection in this court of its Protected
Material.
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Designating Party of the unauthorized disclosures, (b) use its best
efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the
person or persons to whom unauthorized disclosures were made of all the terms of
this Order, and (d) request such person or persons to execute the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A.
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review. Pursuant to Federal Rule of Evidence
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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated
protective order submitted to the court.
12. MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order, no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Protective
Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Local Civil Rule 79-5. Protected Material
may only be filed under seal pursuant to a court order authorizing the sealing of the
specific Protected Material at issue. If a Party’s request to file Protected Material
under seal is denied by the court, then the Receiving Party may file the information
in the public record unless otherwise instructed by the court.
13. FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60
days of a written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy such material. As
used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the Producing Party (and, if
not the same person or entity, to the Designating Party) by the 60 day deadline that
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(1) identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed and (2) affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel
are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition
and trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this Protective
Order as set forth in Section 4 (DURATION).
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1/14. VIOLATION
2 Any violation of this Order may be punished by appropriate measures
3 || including, without limitation, contempt proceedings and/or monetary sanctions.
4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6 Dated: January 9, 2023 DENTONS US LLP
By: _ eee
8
Judith Shophet Sidkoff
9 Attorneys for Defendants
10 THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, and PRUCO
Ss 11 LIFE INSURANCE COMPANY
ge 12
728 Dated: January 4, 2023
S328 13
é 4 14 By: _/s/Michael P. Rubin
28S = Michael P. Rubin
ane” 15 Appearing in Pro Per
2 & 122828174
a < 16
SA
17
ig ORDER
19 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
20 || DATED: January 11, 2023 .
22 HON. ROZELLA A. OLIVER
74 United States Magistrate Judge
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Case 2:22-cv-08016-MCS-RAO Document 18 Filed 01/11/23 Page 16 of 16 Page ID #:198
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of
_______________________________ [print or type full address], declare under
penalty of perjury that I have read in its entirety and understand the Stipulated
Protective Order that was issued by the United States District Court for the Central
District of California on [date] in the case of Michael P. Rubin v. The Prudential
Insurance Company of America et al, Case No. 2:22-cv-08016-MCS-RAOx. I
agree to comply with and to be bound by all the terms of this Stipulated Protective
Order and I understand and acknowledge that failure to so comply could expose me
to sanctions and punishment in the nature of contempt. I solemnly promise that I
will not disclose in any manner any information or item that is subject to this
Stipulated Protective Order to any person or entity except in strict compliance with
the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court
for the Central District of California for enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of
this action. I hereby appoint __________________________ [print or type full
name] of _______________________________________ [print or type full
address and telephone number] as my California agent for service of process in
connection with this action or any proceedings related to enforcement of this
Stipulated Protective Order.
Date: ______________________________________
City and State where sworn and signed: _________________________________
Printed name: _______________________________
Signature: __________________________________