Opinion

Alan T. Rasof v. Felix Lyubovny

Court: District Court, C.D. California
Filed: Apr 28, 2023
Cited by: 0 cases
Authority: More cited than 16.4%

distinguishing “good cause” 25 showing for sealing documents produced in discovery from “compelling reasons” 26 standard when merits-related documents are part of court record

How later courts described this case

distinguishing “good cause” 25 showing for sealing documents produced in discovery from “compelling reasons” 26 standard when merits-related documents are part of court record
even stipulated protective orders require 19 good cause showing

Written by the judges who cited it.

The opinion

1 Keith T. Grumer (pro hac vice)

kgrumer@grumerlaw.com

2 Grumer Law, P.A.

2482 Eagle Watch Ct.

3 Weston, FL 33327

Tel: (954) 303-3000

Matthew L. Eanet (SBN 227490)

5 matt@eanetpc.com

EANET, PC

6 550 S. Hope Street, Suite 750

Los Angeles, California 90071

7 Tel: (310) 775-2495

8 Counsel for Plaintiff Alan Rasof

Richard de Bodo (SBN 128199)

10 MUNCK WILSON MANDALA, LLP

1925 Century Park East, Suite 2300

11 Los Angeles, California 90067

E-mail: rdebodo@munckwilson.com

12 Tel: (310) 855-3311

Counsel for Defendant Felix Lyubovny

15 UNITED STATES DISTRICT COURT

16 CENTRAL DISTRICT OF CALIFORNIA

ALAN T. RASOF,

18 Case No. 2:22-cv-08080-JVS-PD

Plaintiff,

19 Hon. Patricia Donahue

20 AMENDED STIPULATED

FELIX LYUBOVNY, PROTECTIVE ORDER

Defendant.

1 1. A. PURPOSES AND LIMITATIONS

2 Discovery in this action is likely to involve production of confidential,

3 proprietary, or private information for which special protection from public

4 disclosure and from use for any purpose other than prosecuting this litigation may be

5 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter

6 the following Stipulated Protective Order. The parties acknowledge that this Order

7 does not confer blanket protections on all disclosures or responses to discovery and

8 that the protection it affords from public disclosure and use extends only to the

9 limited information or items that are entitled to confidential treatment under the

10 applicable legal principles.

11 B. GOOD CAUSE STATEMENT

12 This action is likely to involve trade secrets, customer and pricing lists and

13 other valuable research, development, commercial, financial, technical and/or

14 proprietary information for which special protection from public disclosure and from

15 use for any purpose other than prosecution of this action is warranted. Such

16 confidential and proprietary materials and information consist of, among other

17 things, confidential business or financial information, information regarding

18 confidential business practices, or other confidential research, development, or

19 commercial information (including information implicating privacy rights of third

20 parties), information otherwise generally unavailable to the public, or which may be

21 privileged or otherwise protected from disclosure under state or federal statutes,

22 court rules, case decisions, or common law. Accordingly, to expedite the flow of

23 information, to facilitate the prompt resolution of disputes over confidentiality of

24 discovery materials, to adequately protect information the parties are entitled to keep

25 confidential, to ensure that the parties are permitted reasonable necessary uses of

26 such material in preparation for and in the conduct of trial, to address their handling

27 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.

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 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

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 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: this pending federal law suit

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.”

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

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 which

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.”

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

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

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 maintained pursuant to this protective order used or introduced

21 as an exhibit at trial becomes public and will be presumptively available to all

22 members of the public, including the press, unless compelling reasons supported by

23 specific factual findings to proceed otherwise are made to the trial judge in advance

24 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

25 showing for sealing documents produced in discovery from “compelling reasons”

26 standard when merits-related documents are part of court record). Accordingly, for

27 such materials, the terms of this protective order do not extend beyond the

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 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

contains protected material. If only a portion or portions 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.” 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 legend” to each page that contains Protected Material. If only a

portion or portions 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 identify

the Disclosure or Discovery Material on the record, before the close of the deposition

all protected testimony.

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.” 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 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

19 7.1 Basic Principles. A Receiving Party may use Protected Material that is

20 disclosed or produced by another Party or by a Non-Party in connection with this

21 Action only for prosecuting, defending, or attempting to settle this Action. Such

22 Protected Material may be disclosed only to the categories of persons and under the

23 conditions described in this Order. When the Action has been terminated, a

24 Receiving Party must comply with the provisions of section 13 below (FINAL

25 DISPOSITION).

26 Protected Material must be stored and maintained by a Receiving Party at a

27 location and in a secure manner that ensures that access is limited to the persons

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” 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;

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;

(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 1 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,” that Party must:

9 (a) promptly notify in writing the Designating Party. Such notification shall

10 include a copy of the subpoena or court order;

11 (b) promptly notify in writing the party who caused the subpoena or order

12 to issue in the other litigation that some or all of the material covered by the subpoena

13 or order is subject to this Protective Order. Such notification shall include a copy of

14 this Stipulated Protective Order; and

15 (c) cooperate with respect to all reasonable procedures sought to be pursued

16 by the Designating Party whose Protected Material may be affected.

17 If the Designating Party timely seeks a protective order, the Party served

18 with the subpoena or court order shall not produce any information designated in this

19 action as “CONFIDENTIAL” before a determination by the court from which the

20 subpoena or order issued, unless the Party has obtained the Designating Party’s

21 permission. The Designating Party shall bear the burden and expense of seeking

22 protection in that court of its confidential material and nothing in these provisions

23 should be construed as authorizing or encouraging a Receiving Party in this Action

24 to disobey a lawful directive from another court.

26 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT

27 TO BE PRODUCED IN THIS LITIGATION

Non-Party in this Action and designated as “CONFIDENTIAL.” 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

(3) make the information requested available for inspection by the

Non-Party, if requested.

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

27 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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

10 When a Producing Party gives notice to Receiving Parties that certain

11 inadvertently produced material is subject to a claim of privilege or other protection,

12 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

13 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

14 may be established in an e-discovery order that provides for production without prior

15 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

16 parties reach an agreement on the effect of disclosure of a communication or

17 information covered by the attorney-client privilege or work product protection, the

18 parties may incorporate their agreement in the stipulated protective order submitted

19 to the court.

21 12. MISCELLANEOUS

22 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

23 person to seek its modification by the Court in the future.

24 12.2 Right to Assert Other Objections. By stipulating to the entry of this

25 Protective Order no Party waives any right it otherwise would have to object to

26 disclosing or producing any information or item on any ground not addressed in this

27 Stipulated Protective Order. Similarly, no Party waives any right to object on any

12.3 Filing Protected Material. A Party that seeks to file under seal any

Protected Material must comply with Civil Local 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 (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).

Any violation of this Order may be punished by any and all appropriate measures

including, without limitation, contempt proceedings and/or monetary sanctions.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: April 26, 2023 GRUMER LAW, P.A.

By: /s/ Keith T. Grumer

8 Keith T. Grumer (pro hac vice)

9 kgrumer@grumerlaw.com

Grumer Law, P.A.

10 2482 Eagle Watch Ct. Weston, FL 33327

11 Tel: 954-303-3000

Matthew L. Eanet (SBN: 227490)

13 matt@eanetpc.com

EANET, PC

550 S. Hope St, Suite 750

15 Los Angeles, California 90071

Tel: (310) 775-2495

17 Counsel for Plaintiff Alan Rasof

18 Dated: April 26, 2023 MUNCK WILSON MANDALA, LLP

By: /s/ Richard de Bodo

Richard de Bodo

21 1925 Century Park East, Suite 2300

Los Angeles, California 90067

rdebodo@munckwilson.com

Counsel for Defendant Felix Lyubovny

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

° DATED: April 28, 2023 Fabia Denakoe_

3 Patricia Donahue

4 United States Magistrate Judge

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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 Rasof v. Lyubovny, Case No: 2:22-cv-08080-NS-PD . I

8 agree to comply with and to be bound by all the terms of this Stipulated Protective

9 Order and I understand and acknowledge that failure to so comply could expose me

10 to sanctions and punishment in the nature of contempt. I solemnly promise that I

11 will not disclose in any manner any information or item that is subject to this

12 Stipulated Protective Order to any person or entity except in strict compliance with

13 the provisions of this Order.

14 I further agree to submit to the jurisdiction of the United States District Court for

15 the Central District of California for the purpose of enforcing the terms of this

16 Stipulated Protective Order, even if such enforcement proceedings occur after

17 termination of this action. I hereby appoint ________________________ [print or

18 type full name] of _________ [print or type full address and telephone number] as

19 my California agent for service of process in connection with this action or any

20 proceedings related to enforcement of this Stipulated Protective Order.

Date: __________________________

City and State where sworn and signed: _____________________________

25 Printed name: ____________________________________

Signature: ________________________________

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