The opinion
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8 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
9
DAVID ROBINSON, an individual;
10 NINA ROBINSON, an individual, Case No. 8:23-cv-00803 JWH (JDEx)
11 Plaintiffs,
12 vs. STIPULATED PROTECTIVE
ORDER
QUEST DIAGNOSTICS,
13 INCORPORATED, a Delaware
corporation, dba QUEST
14 DIAGNOSTICS; DOES 1 through 15, [Note Changes by the Court]
inclusive,
15
Defendant.
16
17 Based on the Parties’ Stipulation (Dkt. 14) , as modified by the Court under the
18 applicable authorities, and for good cause shown, the Court finds and orders as follows.
19 I. PURPOSES AND LIMITATIONS
20 Discovery in this action is likely to involve production of confidential,
21 proprietary, or private information for which special protection from public disclosure
22 and from use for any purpose other than prosecuting this litigation may be warranted.
23 Accordingly, the parties hereby stipulate to and petition the Court to enter the following
24 Stipulated Protective Order. The parties acknowledge that this Order does not confer
1 blanket protections on all disclosures or responses to discovery and that the protection
2 it affords from public disclosure and use extends only to the limited information or
3 items that are entitled to confidential treatment under the applicable legal principles.
4 The parties further acknowledge, as set forth further below, that this Stipulated
5 Protective Order does not entitle them to file confidential information under seal; Local
6 Civil Rule 79-5 sets forth the procedures that must be followed and the standards that
7 will be applied when a party seeks permission from the court to file material under seal.
8 There is a strong presumption that the public has a right of access to judicial
9 proceedings and records in civil cases. In connection with non-dispositive motions,
10 good cause must be shown to support a filing under seal. See Kamakana v. City and
11 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp.,
12 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187
13 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause
14 showing), and a specific showing of good cause or compelling reasons with proper
15 evidentiary support and legal justification, must be made with respect to Protected
16 Material that a party seeks to file under seal. The parties’ mere designation of material
17 under this Order does not— without the submission of competent evidence by
18 declaration, establishing that the material sought to be filed under seal qualifies as
19 confidential, privileged, or otherwise protectable—constitute good cause. Further, if a
20 party requests sealing related to a dispositive motion or trial, then compelling reasons,
21 not only good cause, for the sealing must be shown, and the relief sought shall be
22 narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific
23 Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of
24 information, document, or thing sought to be filed or introduced under seal, the party
1 seeking protection must articulate compelling reasons, supported by specific facts and
2 legal justification, for the requested sealing order. Competent evidence supporting the
3 application to file documents under seal must be provided by declaration. Any
4 document that is not confidential, privileged, or otherwise protectable in its entirety
5 will not be filed under seal if the confidential portions can be redacted. If documents
6 can be redacted, then a redacted version for public viewing, omitting only the
7 confidential, privileged, or otherwise protectable portions of the document, shall be
8 filed. Any application that seeks to file documents under seal in their entirety should
9 include an explanation of why redaction is not feasible.
10 II. GOOD CAUSE STATEMENT
11 At this time discovery is anticipated to include production of documents and
12 information that may be of a confidential and/or proprietary nature for which special
13 protection from public disclosure and from use for any purpose other than prosecution
14 of this action is warranted. Such confidential and proprietary materials and
15 information may consist of, among other things, confidential Protected Health
16 Information pursuant to 45 CFR Parts 160-164 and California Civil Code section 56, et
17 seq., proprietary and confidential business policies, standard operating procedures,
18 commercial information, personnel information, quality assurance/control
19 information, and information otherwise generally unavailable to the public, or which
20 may be privileged or otherwise protected from disclosure under state or federal
21 statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow
22 of information, to facilitate the prompt resolution of disputes over confidentiality of
23 discovery materials, to adequately protect information the parties are entitled to keep
24 confidential, to ensure that the parties are permitted reasonable necessary uses of such
1 material in preparation for and in the conduct of trial, to address their handling at the
2 end of the litigation, and serve the ends of justice, a protective order for such
3 information is justified in this matter. It is the intent of the parties that information
4 will not be designated as confidential for tactical reasons and that nothing be so
5 designated without a good faith belief that it has been maintained in a confidential,
6 non-public manner, and there is good cause why it should not be part of the public
7 record of this case.
8 III. DEFINITIONS
9 A. Action: David Robinson and Nina Robinson v. Quest Diagnostics, Inc.,
10 USDC Central District Case No. 8:23-cv-00803.
11 B. Challenging Party: A Party or Non-Party that challenges the designation
12 of information or items under this Order.
13 C. “CONFIDENTIAL” Information or Items: Information (regardless of how
14 it is generated, stored or maintained) or tangible things that qualify for protection
15 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
16 Statement.
17 D. Counsel: Outside Counsel of Record and House Counsel (as well as their
18 support staff).
19 E. Designating Party: A Party or Non-Party that designates information or
20 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
21 F. Disclosure or Discovery Material: All items or information, regardless of
22 the medium or manner in which it is generated, stored, or maintained (including,
23 among other things, testimony, transcripts, and tangible things), that are produced or
24 generated in disclosures or responses to discovery in this matter.
1 G. Expert: A person with specialized knowledge or experience in a matter
2 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
3 expert witness or as a consultant in this Action.
4 H. House Counsel: Attorneys who are employees of a Party. House Counsel
5 does not include Outside Counsel of Record or any other outside counsel.
6 I. Non-Party: Any natural person, partnership, corporation, association, or
7 other legal entity not named as a Party to this action.
8 J. Outside Counsel of Record: Attorneys who are not employees of a party
9 to this Action but are retained to represent or advise a party to this Action and have
10 appeared in this Action on behalf of that party or are affiliated with a law firm which
11 has appeared on behalf of that party, and includes support staff.
12 K. Party: Any party to this Action, including all of its officers, directors,
13 employees, consultants, retained experts, and Outside Counsel of Record (and their
14 support staffs).
15 L. Producing Party: A Party or Non-Party that produces Disclosure or
16 Discovery Material in this Action.
17 M. Professional Vendors: Persons or entities that provide litigation support
18 services (e.g., photocopying, videotaping, translating, preparing exhibits or
19 demonstrations, and organizing, storing, or retrieving data in any form or medium)
20 and their employees and subcontractors.
21 N. Protected Material: Any Disclosure or Discovery Material that is
22 designated as “CONFIDENTIAL.”
23 O. Receiving Party: A Party that receives Disclosure or Discovery Material
24 from a Producing Party.
1 IV. SCOPE
2 The protections conferred by this Stipulation and Order cover not only Protected
3 Material (as defined above), but also (1) any information copied or extracted from
4 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
5 Material; and (3) any testimony, conversations, or presentations by Parties or their
6 Counsel that might reveal Protected Material.
7 Any use of Protected Material at trial shall be governed by the orders of the trial
8 judge and other applicable authorities. This Order does not govern the use of Protected
9 Material at trial.
10 V. DURATION
11 Even after final disposition of this litigation, the confidentiality obligations
12 imposed by this Order shall remain in effect until a Designating Party agrees otherwise
13 in writing or a court order otherwise directs. Final disposition shall be deemed to be
14 the later of (1) dismissal of all claims and defenses in this Action, with or without
15 prejudice; and (2) final judgment herein after the completion and exhaustion of all
16 appeals, rehearings, remands, trials, or reviews of this Action, including the time limits
17 for filing any motions or applications for extension of time pursuant to applicable law.
18 VI. DESIGNATING PROTECTED MATERIAL
19 5.1 Exercise of Restraint and Care in Designating Material for Protection.
20 Each Party or Non-Party that designates information or items for protection under this
21 Order must take care to limit any such designation to specific material that qualifies
22 under the appropriate standards. The Designating Party must designate for protection
23 only those parts of material, documents, items, or oral or written communications that
24 qualify so that other portions of the material, documents, items, or communications for
1 which protection is not warranted are not swept unjustifiably within the ambit of this
2 Order.
3 Mass, indiscriminate, or routinized designations are prohibited. Designations
4 that are shown to be clearly unjustified or that have been made for an improper
5 purpose (e.g., to unnecessarily encumber the case development process or to impose
6 unnecessary expenses and burdens on other parties) may expose the Designating Party
7 to sanctions.
8 If it comes to a Designating Party’s attention that information or items that it
9 designated for protection do not qualify for protection, that Designating Party must
10 promptly notify all other Parties that it is withdrawing the inapplicable designation.
11 5.2 Manner and Timing of Designations. Except as otherwise provided in this
12 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
13 or ordered, Disclosure or Discovery Material that qualifies for protection under this
14 Order must be clearly so designated before the material is disclosed or produced.
15 Designation in conformity with this Order requires the following:
16 a. For information in documentary form (e.g., paper or electronic
17 documents, but excluding transcripts of depositions or other pretrial or trial
18 proceedings), that the Producing Party affix at a minimum, the legend
19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that contains
20 protected material. If only a portion or portions of the material on a page qualifies for
21 protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
22 by making appropriate markings in the margins).
23 A Party or Non-Party that makes original documents available for
24 inspection need not designate them for protection until after the inspecting Party has
1 indicated which documents it would like copied and produced. During the inspection
2 and before the designation, all of the material made available for inspection shall be
3 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it
4 wants copied and produced, the Producing Party must determine which documents, or
5 portions thereof, qualify for protection under this Order. Then, before producing the
6 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to
7 each page that contains Protected Material. If only a portion or portions of the material
8 on a page qualifies for protection, the Producing Party also must clearly identify the
9 protected portion(s) (e.g., by making appropriate markings in the margins).
10 b. For testimony given in depositions that the Designating Party
11 identify the Disclosure or Discovery Material on the record, before the close of the
12 deposition all protected testimony.
13 c. For information produced in form other than document and for
14 any other tangible items, that the Producing Party affix in a prominent place on the
15 exterior of the container or containers in which the information is stored the legend
16 “CONFIDENTIAL.” If only a portion or portions of the information warrants
17 protection, the Producing Party, to the extent practicable, shall identify the protected
18 portion(s).
19 5.3 Inadvertent Failure to Designate. If timely corrected, an inadvertent
20 failure to designate qualified information or items does not, standing alone, waive the
21 Designating Party’s right to secure protection under this Order for such material. Upon
22 timely correction of a designation, the Receiving Party must make reasonable efforts to
23 assure that the material is treated in accordance with the provisions of this Order.
24 / / /
1 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2 6.1 Timing of Challenges. Any party or Non-Party may challenge a
3 designation of confidentiality at any time that is consistent with the Court’s Scheduling
4 Order.
5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
6 resolution process under Local Rule 37.1 et seq.
7 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint
8 stipulation pursuant to Local Rule 37-2.
9 6.3 The burden of persuasion in any such challenge proceeding shall be on
10 the Designating Party. Frivolous challenges, and those made for an improper purpose
11 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
12 expose the Challenging Party to sanctions. Unless the Designating Party has waived or
13 withdrawn the confidentiality designation, all parties shall continue to afford the
14 material in question the level of protection to which it is entitled under the Producing
15 Party’s designation until the Court rules on the challenge.
16 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL
17 7.1 Basic Principles. A Receiving Party may use Protected Material that is
18 disclosed or produced by another Party or by a Non-Party in connection with this
19 Action only for prosecuting, defending, or attempting to settle this Action. Such
20 Protected Material may be disclosed only to the categories of persons and under the
21 conditions described in this Order. When the Action has been terminated, a Receiving
22 Party must comply with the provisions of Section XIV below. Protected Material must
23 be stored and maintained by a Receiving Party at a location and in a secure manner
24 that ensures that access is limited to the persons authorized under this Order.
1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
2 ordered by the Court or permitted in writing by the Designating Party, a Receiving
3 Party may disclose any information or item designated “CONFIDENTIAL” only to:
4 a. The Receiving Party’s Outside Counsel of Record in this Action, as
5 well as employees of said Outside Counsel of Record to whom it is reasonably necessary
6 to disclose the information for this Action;
7 b. The officers, directors, and employees (including House Counsel)
8 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
9 c. Experts (as defined in this Order) of the Receiving Party to whom
10 disclosure is reasonably necessary for this Action and who have signed the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
12 d. The Court and its personnel;
13 e. Court reporters and their staff;
14 f. Professional jury or trial consultants, mock jurors, and
15 Professional Vendors to whom disclosure is reasonably necessary for this Action and
16 who have signed the “Acknowledgment and Agreement to be Bound” attached as
17 Exhibit A hereto;
18 g. The author or recipient of a document containing the information
19 or a custodian or other person who otherwise possessed or knew the information;
20 h. During their depositions, witnesses, and attorneys for witnesses, in
21 the Action to whom disclosure is reasonably necessary provided: (i) the deposing party
22 requests that the witness sign the “Acknowledgment and Agreement to Be Bound;” and
23 (ii) they will not be permitted to keep any confidential information unless they sign the
24 “Acknowledgment and Agreement to Be Bound,” unless otherwise agreed by the
1 Designating Party or ordered by the Court. Pages of transcribed deposition testimony
2 or exhibits to depositions that reveal Protected Material may be separately bound by
3 the court reporter and may not be disclosed to anyone except as permitted under this
4 Stipulated Protective Order; and
5 i. Any mediator or settlement officer, and their supporting
6 personnel, mutually agreed upon by any of the parties engaged in settlement
7 discussions.
8 IX. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
9 IN OTHER LITIGATION
10 If a Party is served with a subpoena or a court order issued in other litigation
11 that compels disclosure of any information or items designated in this Action as
12 “CONFIDENTIAL,” that Party must:
13 a. Promptly notify in writing the Designating Party. Such notification
14 shall include a copy of the subpoena or court order;
15 b. Promptly notify in writing the party who caused the subpoena or
16 order to issue in the other litigation that some or all of the material covered by the
17 subpoena or order is subject to this Protective Order. Such notification shall include a
18 copy of this Stipulated Protective Order; and
19 c. Cooperate with respect to all reasonable procedures sought to be
20 pursued by the Designating Party whose Protected Material may be affected.
21 If the Designating Party timely seeks a protective order, the Party served with
22 the subpoena or court order shall not produce any information designated in this action
23 as “CONFIDENTIAL” before a determination by the Court from which the subpoena or
24 order issued, unless the Party has obtained the Designating Party’s permission. The
1 Designating Party shall bear the burden and expense of seeking protection in that court
2 of its confidential material and nothing in these provisions should be construed as
3 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
4 from another court.
5 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
6 PRODUCED IN THIS LITIGATION
7 A. The terms of this Order are applicable to information produced by a Non-
8 Party in this Action and designated as “CONFIDENTIAL.” Such information produced
9 by Non-Parties in connection with this litigation is protected by the remedies and relief
10 provided by this Order. Nothing in these provisions should be construed as prohibiting
11 a Non-Party from seeking additional protections.
12 B. In the event that a Party is required, by a valid discovery request, to
13 produce a Non-Party’s confidential information in its possession, and the Party is
14 subject to an agreement with the Non-Party not to produce the Non-Party’s
15 confidential information, then the Party shall:
16 1. Promptly notify in writing the Requesting Party and the Non-Party
17 that some or all of the information requested is subject to a confidentiality agreement
18 with a Non-Party;
19 2. Promptly provide the Non-Party with a copy of the Stipulated
20 Protective Order in this Action, the relevant discovery request(s), and a reasonably
21 specific description of the information requested; and
22 3. Make the information requested available for inspection by the
23 Non-Party, if requested.
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1 C. If the Non-Party fails to seek a protective order from this court within 14
2 days of receiving the notice and accompanying information, the Receiving Party may
3 produce the Non-Party’s confidential information responsive to the discovery request.
4 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
5 any information in its possession or control that is subject to the confidentiality
6 agreement with the Non-Party before a determination by the court. Absent a court
7 order to the contrary, the Non-Party shall bear the burden and expense of seeking
8 protection in this court of its Protected Material.
9 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
10 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
11 Protected Material to any person or in any circumstance not authorized under this
12 Stipulated Protective Order, the Receiving Party must immediately (1) notify in writing
13 the Designating Party of the unauthorized disclosures, (2) use its best efforts to retrieve
14 all unauthorized copies of the Protected Material, (3) inform the person or persons to
15 whom unauthorized disclosures were made of all the terms of this Order, and (4)
16 request such person or persons to execute the “Acknowledgment and Agreement to be
17 Bound” that is attached hereto as Exhibit A.
18 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
19 PROTECTED MATERIAL
20 When a Producing Party gives notice to Receiving Parties that certain
21 inadvertently produced material is subject to a claim of privilege or other protection,
22 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
23 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
24 may be established in an e-discovery order that provides for production without prior
1 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
2 parties reach an agreement on the effect of disclosure of a communication or
3 information covered by the attorney-client privilege or work product protection, the
4 parties may incorporate their agreement in the Stipulated Protective Order submitted
5 to the Court.
6 XIII. MISCELLANEOUS
7 12.1. Right to Further Relief. Nothing in this Order abridges the right of any
8 person to seek its modification by the Court in the future.
9 12.2. Right to Assert Other Objections. By stipulating to the entry of this
10 Protective Order, no Party waives any right it otherwise would have to object to
11 disclosing or producing any information or item on any ground not addressed in this
12 Stipulated Protective Order. Similarly, no Party waives any right to object on any
13 ground to use in evidence of any of the material covered by this Protective Order.
14 12.3. Filing Protected Material. A Party that seeks to file under seal any
15 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
16 only be filed under seal pursuant to a court order authorizing the sealing of the specific
17 Protected Material at issue. If a Party's request to file Protected Material under seal is
18 denied by the Court, then the Receiving Party may file the information in the public
19 record unless otherwise instructed by the Court.
20 XIV. FINAL DISPOSITION
21 After the final disposition of this Action, within sixty (60) days of a written
22 request by the Designating Party, each Receiving Party must return all Protected
23 Material to the Producing Party or destroy such material. As used in this subdivision,
24 “all Protected Material” includes all copies, abstracts, compilations, summaries, and
1 || any other format reproducing or capturing any of the Protected Material. Whether the
2 || Protected Material is returned or destroyed, the Receiving Party must submit a written
3 || certification to the Producing Party (and, if not the same person or entity, to the
4 || Designating Party) by the 60 day deadline that (1) identifies (by category, where
5 || appropriate) all the Protected Material that was returned or destroyed and (2) affirms
6 || that the Receiving Party has not retained any copies, abstracts, compilations,
7 ||summaries or any other format reproducing or capturing any of the Protected Material.
8 || Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
9 || pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
10 || correspondence, deposition and trial exhibits, expert reports, attorney work product,
11 |} and consultant and expert work product, even if such materials contain Protected
12 || Material. Any such archival copies that contain or constitute Protected Material remain
13 || subject to this Protective Order as set forth in Section V.
14 Any violation of this Order may be punished by any and all appropriate
15 || measures including, without limitation, contempt proceedings and/or monetary
16 || sanctions.
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
18
Dated: June 23, 2023 2 _
20 J D. EARLY
ed States Magistrate Jud
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STIPULATED PROTECTIVE ORDER
1 EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
2
3 I, [print or type full name], of
4 [print or type full address], declare under penalty of perjury that I
5 have read in its entirety and understand the Stipulated Protective Order that was issue
6 by the United States District Court for the Central District of California on June 23,
7 2023 in the case of David Robinson, et al., v. Quest Diagnostics, Inc., et al., Case No.
8 8:23-cv-00803-JWH (JDEx). I agree to comply with and to be bound by all the terms
9 of this Stipulated Protective Order and I understand and acknowledge that failure to so
10 comply could expose me to sanctions and punishment in the nature of contempt. I
11 solemnly promise that I will not disclose in any manner any information or item that is
12 subject to this Stipulated Protective Order to any person or entity except in strict
13 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 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
19 telephone number] as my California agent for service of process in connection with this
20 action or any proceedings related to enforcement of this Stipulated Protective Order.
21 Date:
22 City and State where sworn and signed:
23 Printed Name:
24 Signature: