Opinion

Clarence Warren v. J. Gastelo

Court
District Court, C.D. California
Filed
May 26, 2023
Cited by
0 cases
Authority
More cited than 16.4%

distinguishing “good cause” 9 showing for sealing documents produced in discovery from “compelling reasons” 10 standard when merits-related documents are part of court record

How later courts described this case

  • distinguishing “good cause” 9 showing for sealing documents produced in discovery from “compelling reasons” 10 standard when merits-related documents are part of court record

Written by the judges who cited it.

The opinion

1 Attorney General of California

KYLE A. LEWIS

2 Supervising Deputy Attorney General

RYAN J. ZALESNY

3 Deputy Attorney General

State Bar No. 281999

4 300 South Spring Street, Suite 1702

Los Angeles, CA 90013-1230

5 Telephone: (213) 269-6085

Fax: (916) 761-3641

6 E-mail: Ryan.Zalesny@doj.ca.gov

Attorneys for Defendants T. Brehm and D. Bowman

7

8 JENNER & BLOCK LLP

Todd C. Toral (SBN 197706)

9 TToral@jenner.com

Tal Ratner Solovey (SBN 348113)

10 TRatnerSolovey@jenner.com

515 S. Flower St., Suite 3300

11 Los Angeles, CA 90071-2246

Telephone: +1 213 239 5100

12 Facsimile: +1 213 239 5199

13 Attorneys for Plaintiff

14

15 UNITED STATES DISTRICT COURT

16 CENTRAL DISTRICT OF CALIFORNIA

17

18 CLARENCE WARREN, Case No. 2:20-cv-3572 DOC (SK)

19 Plaintiff,

STIPULATED PROTECTIVE

20 v. ORDER

21 GASTELO, et al.,

22 Defendants.

23

24

25 1. A. PURPOSES AND LIMITATIONS

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

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

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

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

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

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

4 discovery and that the protection it affords from public disclosure and use extends

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

6 under the applicable legal principles. The parties further acknowledge, as set forth

7 in Section 12.3 (Filing Protected Material), below, that this Stipulated Protective

8 Order does not entitle them to a file confidential information under seal; Civil Local

9 Rule 79-5 sets forth the procedures that must be followed and the standards that will

10 be applied when a party seeks permission from the court to file material under seal.

11

12 B. GOOD CAUSE STATEMENT

13 This action is likely to involve confidential and proprietary information for

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

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

16 materials and information consist of, among other things, confidential business or

17 financial information, information regarding confidential business practices

18 including information related to confidential investigations, or other confidential

19 research, development, or other information (including information implicating

20 privacy rights of third parties), information otherwise generally unavailable to the

21 public, or which may be privileged or otherwise protected from disclosure under

22 state or federal statutes, court rules, case decisions, or common law. Accordingly,

23 to expedite the flow of information, to facilitate the prompt resolution of disputes

24 over confidentiality of discovery materials, to adequately protect information the

25 parties are entitled to keep confidential, to ensure that the parties are permitted

26 reasonable necessary uses of such material in preparation for and in the conduct of

27 trial, to address their handling at the end of the litigation, and serve the ends of

28 justice, a protective order for such information is justified in this matter. It is the

1 intent of the parties that information will not be designated as confidential for

2 tactical reasons and that nothing be so designated without a good faith belief that it

3 has been maintained in a confidential, non-public manner, and there is good cause

4 why it should not be part of the public record of this case.

5

6 2. DEFINITIONS

7 2.1 Action: Clarence Warren v. Gastelo, et al., Case No. 2:20-cv-3572

8 DOC (SK).

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

10 designation 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

18 or 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

23 or 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.

28 House Counsel does not include Outside Counsel of Record or any other outside

1 counsel.

2 2.9 Non-Party: any natural person, partnership, corporation, association,

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

4 2.10 Outside Counsel of Record: attorneys who are not employees of a

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

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

7 which has appeared on behalf of that party, including support staff.

8 2.11 Party: any party to this Action, including all of its officers, directors,

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

10 support staffs).

11 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

12 Discovery Material in this Action.

13 2.13 Professional Vendors: persons or entities that provide litigation

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

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

16 and their employees and subcontractors.

17 2.14 Protected Material: any Disclosure or Discovery Material that is

18 designated as “CONFIDENTIAL.”

19 2.15 Receiving Party: a Party that receives Disclosure or Discovery

20 Material from a Producing Party.

21

22 3. SCOPE

23 The protections conferred by this Stipulation and Order cover not only

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

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

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

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

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

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

2 4. DURATION

3 Once a case proceeds to trial, all of the information that was designated as

4 confidential or maintained pursuant to this protective order becomes public and will

5 be presumptively available to all members of the public, including the press, unless

6 compelling reasons supported by specific factual findings to proceed otherwise are

7 made to the trial judge in advance of the trial. See Kamakana v. City and County of

8 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”

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

10 standard when merits-related documents are part of court record). Accordingly, the

11 terms of this protective order do not extend beyond the commencement of the trial.

12

13 5. DESIGNATING PROTECTED MATERIAL

14 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

18 protection only those parts of material, documents, items, or oral or written

19 communications that qualify so that other portions of the material, documents,

20 items, or communications for which protection is not warranted are not swept

21 unjustifiably within the ambit of this Order.

22 Mass, indiscriminate, or routinized designations are prohibited. Designations

23 that are shown to be clearly unjustified or that have been made for an improper

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

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

26 Party to sanctions.

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

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

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

2 5.2 Manner and Timing of Designations. Except as otherwise provided in

3 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise

4 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

5 under this Order must be clearly so designated before the material is disclosed or

6 produced.

7 Designation in conformity with this Order requires:

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

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

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

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

12 contains protected material. If only a portion or portions of the material on a page

13 qualifies for protection, the Producing Party also must clearly identify the protected

14 portion(s) (e.g., by making appropriate markings in the margins).

15 A Party or Non-Party that makes original documents available for

16 inspection need not designate them for protection until after the inspecting Party has

17 indicated which documents it would like copied and produced. During the

18 inspection and before the designation, all of the material made available for

19 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

20 identified the documents it wants copied and produced, the Producing Party must

21 determine which documents, or portions thereof, qualify for protection under this

22 Order. Then, before producing the specified documents, the Producing Party must

23 affix the “CONFIDENTIAL legend” to each page that contains Protected Material.

24 If only a portion or portions of the material on a page qualifies for protection, the

25 Producing Party also must clearly identify the protected portion(s) (e.g., by making

26 appropriate markings in the margins).

27 (b) for testimony given in depositions that the Designating Party identify

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

1 deposition all protected testimony.

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

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

4 the exterior of the container or containers in which the information is stored the

5 legend “CONFIDENTIAL.” If only a portion or portions of the information

6 warrants protection, the Producing Party, to the extent practicable, shall identify the

7 protected portion(s).

8 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

9 failure to designate qualified information or items does not, standing alone, waive

10 the Designating Party’s right to secure protection under this Order for such material.

11 Upon timely correction of a designation, the Receiving Party must make reasonable

12 efforts to assure that the material is treated in accordance with the provisions of this

13 Order.

14

15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

16 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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

18 Scheduling Order.

19 6.2 Meet and Confer. The Challenging Party Shall initiate the dispute

20 resolution process under Civil Local Rule 37-1 et seq.

21 6.3 The burden of persuasion in any such challenge proceeding shall be

22 on the Designating Party. Frivolous challenges, and those made for an improper

23 purpose (e.g., to harass or impose unnecessary expenses and burdens on other

24 parties), may expose the Challenging Party to sanctions. Unless the Designating

25 Party has waived or withdrawn the confidentiality designation, all parties shall

26 continue to afford the material in question the level of protection to which it

27 is entitled under the Producing Party’s designation until the Court rules on the

28 challenge.

1

2 7. ACCESS TO AND USE OF PROTECTED MATERIAL

3 7.1 Basic Principles. A Receiving Party may use Protected Material that

4 is disclosed or produced by another Party or by a Non-Party in connection with

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

6 Such Protected Material may be disclosed only to the categories of persons and

7 under the conditions described in this Order. When the Action has been

8 terminated, a Receiving Party must comply with the provisions of Section 13 below

9 (FINAL DISPOSITION).

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

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

12 persons authorized under this Order.

13 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

14 otherwise ordered by the Court or permitted in writing by the Designating Party, a

15 Receiving Party may disclose any information or item designated

16 “CONFIDENTIAL” only to:

17 (a) the Receiving Party’s Outside Counsel of Record in this Action, as

18 well as employees of said Outside Counsel of Record to whom it is reasonably

19 necessary to disclose the information for this Action;

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

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

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

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

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

25 (d) the Court and its personnel;

26 (e) court reporters and their staff;

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

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

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

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

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

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

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

6 party requests that the witness sign the form attached as Exhibit A hereto; and (2)

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

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

9 agreed by the Designating Party or ordered by the Court. Pages of transcribed

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

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

12 as permitted under this Stipulated Protective Order; and

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

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

15

16 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

17 IN OTHER LITIGATION

18 If a Party is served with a subpoena or a court order issued in other litigation

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

20 “CONFIDENTIAL,” that Party must:

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

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

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

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

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

26 a copy of this Stipulated Protective Order; and

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

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

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

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

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

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

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

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

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

8 to disobey a lawful directive from another court.

9

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

11 PRODUCED IN THIS LITIGATION

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

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

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

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

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

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

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

19 subject to an agreement with the Non-Party not to produce the Non-Party’s

20 confidential information, then the Party shall:

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

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

23 with a Non-Party;

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

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

26 specific description of the information requested; and

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

28 Party, if requested.

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

2 14 days of receiving the notice and accompanying information, the Receiving Party

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

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

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

6 confidentiality agreement with the Non-Party before a determination by the Court.

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

8 expense of seeking protection in this Court of its Protected Material.

9

10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

16 or persons to whom unauthorized disclosures were made of all the terms of this

17 Order, and (d) request such person or persons to execute the “Acknowledgment and

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

19

20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

21 PROTECTED MATERIAL

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

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

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

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

26 procedure may be established in an e-discovery order that provides for production

27 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

28 (e), insofar as the parties reach an agreement on the effect of disclosure of a

1 communication or information covered by the attorney-client privilege or work

2 product protection, the parties may incorporate their agreement in the stipulated

3 protective order submitted to the Court.

4

5 12. MISCELLANEOUS

6 12.1 Right to Relief. Nothing in this Order abridges the right of any person

7 to seek its modification by the Court in the future.

8 12.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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

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

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

13 12.3 Filing Protected Material. A Party that seeks to file under seal any

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

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

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

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

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

19

20 13. FINAL DISPOSITION

21 After the final disposition of this Action, as defined in Section 4

22 (DURATION), within 60 days of a written request by the Designating Party, each

23 Receiving Party must return all Protected Material to the Producing Party or destroy

24 such material. As used in this subdivision, “all Protected Material” includes all

25 copies, abstracts, compilations, summaries, and any other format reproducing or

26 capturing any of the Protected Material. Whether the Protected Material is returned

27 or destroyed, the Receiving Party must submit a written certification to the

28 Producing Party (and, if not the same person or entity, to the Designating Party) by

1 the 60 day deadline that (1) identifies (by category, where appropriate) all the

2 Protected Material that was returned or destroyed; and (2) affirms that the Receiving

3 Party has not retained any copies, abstracts, compilations, summaries, or any other

4 format reproducing or capturing any of the Protected Material. Notwithstanding this

5 provision, Counsel are entitled to retain an archival copy of all pleadings, motion

6 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

7 deposition and trial exhibits, expert reports, attorney work product, and consultant

8 and expert work product, even if such materials contain Protected Material. Any

9 such archival copies that contain or constitute Protected Material remain subject to

10 this Protective Order as set forth in Section 4 (DURATION).

11

12 14. Any violation of this Order may be punished by any and all appropriate

13 measures including, without limitation, contempt proceedings and/or

14 monetary sanctions.

15

16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

17

18 DATED May 26, 2023

19

20 Tal Ratner Solovey

21 (as authorized on May 26, 2023)

22 Attorneys for Plaintiff

23

24 DATED: May 26, 2023

25

26 Ryan Zalesny

27 Attorneys for Defendant

28

1} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

2

3| DATED: May 26, 2023

4

5 SR

6 | Honorable Steve Kim

, United States Magistrate Judge

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1A

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

4 I, _____________________________ [print or type full name], of

5 _________________ [print or type full address], declare under penalty of perjury

6 that I have read in its entirety and understand the Stipulated Protective Order that

7 was issued by the United States District Court for the Central District of California

8 on [date] in the case of Clarence Warren v. Gastelo, et al., Case No. 2:20-cv-3572

9 DOC (SK). I agree to comply with and to be bound by all the terms of this Stipulated

10 Protective Order, and I understand and acknowledge that failure to so comply could

11 expose me to sanctions and punishment in the nature of contempt. I solemnly

12 promise that I will not disclose in any manner any information or item that is subject

13 to this Stipulated Protective Order to any person or entity except in strict compliance

14 with the provisions of this Order.

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

16 for 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

19 or type full name] of _______________________________________ [print or type

20 full address and telephone number] as my California agent for service of process in

21 connection with this action or any proceedings related to enforcement of this

22 Stipulated Protective Order.

23 Date: ______________________________________

24 City and State where sworn and signed: _________________________________

25

26 Printed name: _______________________________

27

28 Signature: __________________________________

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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