Liyila Marinova v. Mazda Motor of America, Inc.

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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LIYILA MARINOVA, individually Case No. 8:22-cv-01453-FWS (JDEx)

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and on behalf of all others similarly

situated,

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STIPULATED PROTECTIVE

Plaintiff, ORDER

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vs.

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MAZDA MOTOR OF AMERICA,

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INC, and DOES 1 through 10,

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Defendants.

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19 Pursuant to the parties’ Stipulation (Dkt. 39), and for good cause shown, the

20 Court finds and orders as follows.

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

25 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

26 enter the following Stipulated Protective Order. The parties acknowledge that this

27 Order does not confer blanket protections on all disclosures or responses to

1 only to the limited information or items that are entitled to confidential treatment

2 under the applicable legal principles.

3 B. GOOD CAUSE STATEMENT

4 This action is likely to involve trade secrets and other valuable research,

5 development, commercial, financial, technical and/or proprietary information for

6 which special protection from public disclosure and from use for any purpose other

7 than prosecution of this action is warranted. Such confidential and proprietary

8 materials and information consist of, among other things, confidential submissions to

9 the California Air Resources Board (“CARB”) regarding regulatory compliance, and

10 other technical issues. The automotive industry is highly competitive, and these

11 submissions are routinely kept confidential by automotive companies and by CARB

12 (at the companies’ request) to prevent competitive disadvantage. Other examples of

13 confidential and proprietary information include confidential business or financial

14 information, information regarding confidential business practices, or other

15 confidential research, development, or commercial information (including

16 information implicating privacy rights of third parties), information otherwise

17 generally unavailable to the public, or which may be privileged or otherwise

18 protected from disclosure under state or federal statutes, court rules, case decisions,

19 or common law. Accordingly, to expedite the flow of information, to facilitate the

20 prompt resolution of disputes over confidentiality of discovery materials, to

21 adequately protect information the parties are entitled to keep confidential, to ensure

22 that the parties are permitted reasonable necessary uses of such material in

23 preparation for and in the conduct of trial, to address their handling at the end of the

24 litigation, and serve the ends of justice, a protective order for such information is

25 justified in this matter. The parties intend that information will not be designated as

26 confidential for tactical reasons and that nothing be so designated without a good

27 faith belief that it has been maintained in a confidential, non-public manner, and there

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

5 and the standards that will be applied when a party seeks permission from the court

6 to 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

13 require good cause showing), and a specific showing of good cause or compelling

14 reasons with proper evidentiary support and legal justification, must be made with

15 respect to Protected Material that a party seeks to file under seal. The parties’ mere

16 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

17 without the submission of competent evidence by declaration, establishing that the

18 material sought to be filed under seal qualifies as confidential, privileged, or

19 otherwise protectable—constitute good cause.

20 Further, if a party requests sealing related to a dispositive motion or trial, then

21 compelling reasons, not only good cause, for the sealing must be shown, and the

22 relief sought shall be narrowly tailored to serve the specific interest to be protected.

23 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For

24 each item or type of information, document, or thing sought to be filed or introduced

25 under seal in connection with a dispositive motion or trial, the party seeking

26 protection must articulate compelling reasons, supported by specific facts and legal

27 justification, for the requested sealing order. Again, competent evidence supporting

1 Any document that is not confidential, privileged, or otherwise protectable in

2 its entirety will not be filed under seal if the confidential portions can be redacted. If

3 documents can be redacted, then a redacted version for public viewing, omitting

4 only the confidential, privileged, or otherwise protectable portions of the document,

5 shall be filed. Any application that seeks to file documents under seal in their

6 entirety should include an explanation of why redaction is not feasible.

7 2. DEFINITIONS

8 2.1 Action: this pending federal lawsuit.

9 2.2 Challenging Party: a Party or Non-Party that challenges the designation

10 of information or items under this Order.

11 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

12 how it is generated, stored or maintained) or tangible things that qualify for

13 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

14 the Good Cause Statement.

15 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

16 their support staff).

17 2.5 Designating Party: a Party or Non-Party that designates information or

18 items that it produces in disclosures or in responses to discovery as

19 “CONFIDENTIAL.”

20 2.6 Disclosure or Discovery Material: all items or information, regardless

21 of the medium or manner in which it is generated, stored, or maintained (including,

22 among other things, testimony, transcripts, and tangible things), that are produced or

23 generated in disclosures or responses to discovery in this matter.

24 2.7 Expert: a person with specialized knowledge or experience in a matter

25 pertinent to the litigation who has been retained by a Party or its counsel to serve as

26 an expert witness or as a consultant in this Action.

27 2.8 House Counsel: attorneys who are employees of a party to this Action.

1 2.9 Non-Party: any natural person, partnership, corporation, association or

2 other legal entity not named as a Party to this action.

3 2.10 Outside Counsel of Record: attorneys who are not employees of a party

4 to this Action but are retained to represent or advise a party to this Action and have

5 appeared in this Action on behalf of that party or are affiliated with a law firm that

6 has appeared on behalf of that party, and includes support staff.

7 2.11 Party: any party to this Action, including all of its officers, directors,

8 employees, consultants, retained experts, and Outside Counsel of Record (and their

9 support staffs).

10 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

11 Discovery Material in this Action.

12 2.13 Professional Vendors: persons or entities that provide litigation support

13 services (e.g., photocopying, videotaping, translating, preparing exhibits or

14 demonstrations, and organizing, storing, or retrieving data in any form or medium)

15 and their employees and subcontractors.

16 2.14 Protected Material: any Disclosure or Discovery Material that is

17 designated as “CONFIDENTIAL.”

18 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

19 from a Producing Party.

3. SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the

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trial judge. This Order does not govern the use of Protected Material at trial.

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1 4. DURATION

2 FINAL DISPOSITION of the action is defined as the conclusion of any

3 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal

4 has run. Except as set forth below, the terms of this protective order apply through

5 FINAL DISPOSITION of the action. The parties may stipulate that the they will be

6 contractually bound by the terms of this agreement beyond FINAL DISPOSITION,

7 but will have to file a separate action for enforcement of the agreement once all

8 proceedings in this case are complete.

9 Once a case proceeds to trial, information that was designated as

10 CONFIDENTIAL or maintained pursuant to this protective order used or introduced

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

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

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

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

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

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

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

18 commencement of the trial.

19 5. DESIGNATING PROTECTED MATERIAL

20 5.1 Exercise of Restraint and Care in Designating Material for Protection.

21 Each Party or Non-Party that designates information or items for protection under

22 this Order must take care to limit any such designation to specific material that

23 qualifies under the appropriate standards. The Designating Party must designate for

24 protection only those parts of material that qualify so that other portions of the

25 material, documents, items or communications for which protection is not warranted

26 are not swept unjustifiably within the ambit of this Order.

27 Mass, indiscriminate or routinized designations are prohibited. Designations

1 purpose (e.g., to unnecessarily encumber the case development process or to impose

2 unnecessary expenses and burdens on other parties) may expose the Designating

3 Party to sanctions.

4 If it comes to a Designating Party’s attention that information or items that it

5 designated for protection do not qualify for protection, that Designating Party must

6 promptly notify all other Parties that it is withdrawing the inapplicable designation.

7 5.2 Manner and Timing of Designations. Except as otherwise set forth

8 herein (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated

9 or ordered, Disclosure or Discovery Material that qualifies for protection under this

10 Order must be clearly so designated before the material is disclosed or produced.

11 Designation in conformity with this Order requires:

12 (a) for information in documentary form (e.g., paper or electronic

13 documents, but excluding transcripts of depositions or other pretrial or trial

14 proceedings), that the Producing Party affix at a minimum, the legend

15 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

16 contains protected material. If only a portion of the material on a page qualifies for

17 protection, the Producing Party also must clearly identify the protected portion(s)

18 (e.g., by making appropriate markings in the margins).

19 A Party or Non-Party that makes original documents available for inspection

20 need not designate them for protection until after the inspecting Party has indicated

21 which documents it would like copied and produced. During the inspection and

22 before the designation, all of the material made available for inspection shall be

23 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

24 documents it wants copied and produced, the Producing Party must determine which

25 documents, or portions thereof, qualify for protection under this Order. Then, before

26 producing the specified documents, the Producing Party must affix the

27 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

1 must clearly identify the protected portion(s) (e.g., by making appropriate markings

2 in the margins).

3 (b) for testimony given in depositions that the Designating Party identifies

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

5 deposition all protected testimony.

6 (c) for information produced in some form other than documentary and for

7 any other tangible items, that the Producing Party affix in a prominent place on the

8 exterior of the container or containers in which the information is stored the legend

9 “CONFIDENTIAL.” If only a portion or portions of the information warrants

10 protection, the Producing Party, to the extent practicable, shall identify the protected

11 portion(s).

12 (d) In the case of personally identifying information or information of a

13 uniquely personal nature, including but not limited to, Social Security Numbers;

14 driver’s license or other identification numbers; personal financial information such

15 as tax information, bank account numbers, and credit card numbers; insurance claim

16 numbers; insurance policy numbers; personal email addresses or other contact

17 information; and any other information protected by data privacy and other rules and

18 regulations, any Producing Party may redact or pseudonymize documents and things

19 it produces that it claims is protected personal information.

20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

21 failure to designate qualified information or items does not, by itself, waive the

22 Designating Party’s right to protection under this Order for such material. Upon

23 timely correction of a designation, the Receiving Party must make reasonable efforts

24 to assure that the material is treated in accordance with the provisions of this Order.

25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

27 designation of confidentiality at any time that is consistent with the Court’s

1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

2 resolution process under Local Rule 37.1 et seq.

3 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a

4 joint stipulation pursuant to Local Rule 37-2.

5 The burden of persuasion in any such challenge proceeding shall be on the

6 Designating Party. Frivolous challenges, and those made for an improper purpose

7 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may

8 expose the Challenging Party to sanctions. Unless the Designating Party has waived

9 or withdrawn the confidentiality designation, all parties shall continue to afford the

10 material in question the level of protection to which it is entitled under the

11 Producing Party’s designation until the Court rules on the challenge.

12 7. ACCESS TO AND USE OF PROTECTED MATERIAL

13 7.1 Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

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

19 DISPOSITION).

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

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

22 authorized under this Order.

23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

24 otherwise ordered by the court or permitted in writing by the Designating Party, a

25 Receiving Party may disclose any information or item designated

26 “CONFIDENTIAL” only to:

27 (a) Counsel retained or employed by the Parties, and their respective

1 engaged in the copying or organization or conversion of documents from or to

2 electronic media) retained by counsel;

3 (b) the officers, directors, and employees (including House Counsel) of the

4 Receiving Party to whom disclosure is reasonably necessary for this Action;

5 (c) Experts (as defined in this Order) of the Receiving Party to whom

6 disclosure is reasonably necessary for this Action and who have signed the

7 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

8 (d) the court and its personnel;

9 (e) court reporters and their staff;

10 (f) professional jury or trial consultants, mock jurors, and Professional

11 Vendors to whom disclosure is reasonably necessary for this Action and who have

12 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

13 (g) the author or recipient of a document containing the information or a

14 custodian or other person who otherwise possessed or knew the information;

15 (h) during their depositions, witnesses, and attorneys for witnesses, in the

16 Action to whom disclosure is reasonably necessary provided: (1) the deposing party

17 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will

18 not be permitted to keep any confidential information unless they sign the

19 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

20 agreed by the Designating Party or ordered by the court. Pages of transcribed

21 deposition testimony or exhibits to depositions that reveal Protected Material may

22 be separately bound by the court reporter and may not be disclosed to anyone except

23 as permitted under this Stipulated Protective Order; and

24 (i) any mediator or settlement officer, and their supporting personnel,

25 mutually agreed upon by any of the parties engaged in settlement discussions.

26 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

27 IN OTHER LITIGATION

1 that compels disclosure of any information or items designated in this Action as

2 “CONFIDENTIAL,” that Party must:

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

4 shall include a copy of the subpoena or court order;

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

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

7 subpoena or order is subject to this Protective Order. Such notification shall include

8 a copy of this Stipulated Protective Order; and

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

10 pursued by the Designating Party whose Protected Material may be affected.

11 If the Designating Party timely seeks a protective order, the Party served with

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

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

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

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

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

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

18 to disobey a lawful directive from another court.

19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

20 PRODUCED IN THIS LITIGATION

21 (a) The terms of this Order are applicable to information produced by a

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

23 produced by Non-Parties in connection with this litigation is protected by the

24 remedies and relief provided by this Order. Nothing in these provisions should be

25 construed as prohibiting a Non-Party from seeking additional protections.

26 (b) In the event that a Party is required, by a valid discovery request, to

27 produce a Non-Party’s confidential information in its possession, and the Party is

1 confidential information, then the Party shall:

2 (1) promptly notify in writing the Requesting Party and the Non-Party

3 that some or all of the information requested is subject to a confidentiality

4 agreement with a Non-Party;

5 (2) promptly provide the Non-Party with a copy of the Stipulated

6 Protective Order in this Action, the relevant discovery request(s), and a reasonably

7 specific description of the information requested; and

8 (3) make the information requested available for inspection by the Non-

9 Party, if requested.

10 (c) If the Non-Party fails to seek a protective order from this court within

11 14 days of receiving the notice and accompanying information, the Receiving Party

12 may produce the Non-Party’s confidential information responsive to the discovery

13 request. If the Non-Party timely seeks a protective order, the Receiving Party shall

14 not produce any information in its possession or control that is subject to the

15 confidentiality agreement with the Non-Party before a determination by the court.

16 Absent a court order to the contrary, the Non-Party shall bear the burden and

17 expense of seeking protection in this court of its Protected Material.

18 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

20 Protected Material to any person or in any circumstance not authorized under this

21 Stipulated Protective Order, the Receiving Party must immediately (a) notify in

22 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

23 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

24 persons to whom unauthorized disclosures were made of all the terms of this Order,

25 and (d) request such person or persons to execute the “Acknowledgment and

26 Agreement to Be Bound” that is attached hereto as Exhibit A.

27 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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

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

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

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

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

6 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

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

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

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

10 to the court.

11 12. MISCELLANEOUS

12 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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

14 12.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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

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

18 ground to use in evidence of any of the material covered by this Protective Order.

19 12.3 Filing Protected Material. A Party that seeks to file under seal any

20 Protected Material must comply with Local Civil Rule 79-5. Protected Material may

21 only be filed under seal pursuant to a court order authorizing the sealing of the

22 specific Protected Material at issue. If a Party’s request to file Protected Material

23 under seal is denied by the court, then the Receiving Party may file the information

24 in the public record unless otherwise instructed by the court.

25 13. FINAL DISPOSITION

26 After the final disposition of this Action, as defined in paragraph 4, within 60

27 days of a written request by the Designating Party, each Receiving Party must return

1 || this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

2 || summaries, and any other format reproducing or capturing any of the Protected

3 || Material. Whether the Protected Material is returned or destroyed, the Receiving

4 || Party must submit a written certification to the Producing Party (and, if not the same

5 || person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

6 || (by category, where appropriate) all the Protected Material that was returned or

7 || destroyed and (2) affirms that the Receiving Party has not retained any copies,

8 || abstracts, compilations, summaries or any other format reproducing or capturing any

9 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to

10 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

11 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

12 || reports, attorney work product, and consultant and expert work product, even if such

13 || materials contain Protected Material. Any such archival copies that contain or

14 || constitute Protected Material remain subject to this Protective Order as set forth in

15 || Section 4 (DURATION).

16 || 14. VIOLATION

17 Any violation of this Order may be punished by appropriate measures

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

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20 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

21 i de

22 || DATED: May 04, 2023 Llp 2G

23 fred States Mavistrate ge

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1 EXHIBIT A

2 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 May 4, 2023, in the case of Liyila Marinova v. Mazda Motor of America, Inc,

8 No. 8:22-cv-01453-FWS-JDE. I agree to comply with and to be bound by all the

9 terms of this Stipulated Protective Order and I understand and acknowledge that

10 failure to so comply could expose me to sanctions and punishment in the nature of

11 contempt. I solemnly promise that I will not disclose in any manner any information

12 or item that is subject to this Stipulated Protective Order to any person or entity

13 except in strict compliance with the provisions of this Order.

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

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

16 Protective Order, even if such enforcement proceedings occur after termination of

17 this action.

18 I hereby appoint __________________________ [print or type full name] of

19 _______________________________________ [print or type full address and

20 telephone number] as my California agent for service of process in connection with

21 this action or any proceedings related to enforcement of this Stipulated Protective

22 Order.

23 Date: ______________________________________

24 City and State where sworn and signed: _________________________________

25 Printed name: _______________________________

26 Signature: __________________________________

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