distinguishing 1 “good cause” showing for sealing documents produced in discovery from 2 “compelling reasons” standard when merits-related documents are part of court 3 record
How later courts described this case
- distinguishing 1 “good cause” showing for sealing documents produced in discovery from 2 “compelling reasons” standard when merits-related documents are part of court 3 record
- even 23 stipulated protective orders require good cause showing
Written by the judges who cited it.
The opinion
1
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2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
SOUTHERN DIVISION
11
12 MICHELLE FINN, individually and on Case No. 8:23-cv-00737-FWS-JDE
behalf of all other similarly situated,
13 STIPULATED PROTECTIVE
Plaintiff, ORDER
14
v.
15
LOANDEPOT.COM, LLC.,
16
Defendant. Action filed: April 28, 2023
17
18
Pursuant to the parties’ Stipulation (Dkt. 30) and for good cause shown, the
19
20 Court finds and orders as follows.
21 1. PURPOSES AND LIMITATIONS
22
Disclosure and discovery activity in this action are likely to involve
23
24 production of confidential, proprietary, or private information for which special
25
protection from public disclosure and from use for any purpose other than
26
prosecuting this litigation may be warranted. Accordingly, the parties hereby
27
1 The parties acknowledge that this Agreement does not confer blanket protections on
2 all disclosures or responses to discovery and that the protection it affords from
3
public disclosure and use extends only to the limited information or items that are
4
entitled to confidential treatment under the applicable legal principles.
5
6 2. GOOD CAUSE STATEMENT
7
This action is likely to involve trade secrets, customer and pricing lists and
8
9 other valuable research, development, commercial, financial, technical and/or
10 proprietary information for which special protection from public disclosure and from
11
use for any purpose other than prosecution of this action is warranted. For example,
12
13 this action involves consumer contact information and personal identifying
14 information of the putative class. Such confidential and proprietary materials and
15
information consist of, among other things, confidential business or financial
16
17 information, information regarding confidential business practices, or other
18 confidential research, development, or commercial information (including
19
information implicating privacy rights of third parties), information otherwise
20
21 generally unavailable to the public, or which may be privileged or otherwise
22
protected from disclosure under state or federal statutes, court rules, case decisions,
23
or common law. To expedite the flow of information, to facilitate the prompt
24
25 resolution of disputes over confidentiality of discovery materials, to adequately
26
protect information the parties are entitled to keep confidential, to ensure that the
27
parties are permitted reasonable necessary uses of such material in preparation for
1 and in the conduct of trial, to address their handling at the end of the litigation, and
2 serve the ends of justice, a protective order for such information is justified in this
3
matter. It is the intent of the parties that information will not be designated as
4
confidential for tactical reasons and that nothing be so designated without a good
5
6 faith belief that it has been maintained in a confidential, non-public manner, and
7
there is good cause why it should not be part of the public record of this case.
8
9 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
10 The parties further acknowledge, as set forth in Section 14.3, below, that this
11
Stipulated Protective Order does not entitle them to file confidential information
12
13 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
14 and the standards that will be applied when a party seeks permission from the court
15
to file material under seal. There is a strong presumption that the public has a right
16
17 of access to judicial proceedings and records in civil cases. In connection with non-
18 dispositive motions, good cause must be shown to support a filing under seal. See
19
Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),
20
21 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-
22
Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even
23
stipulated protective orders require good cause showing), and a specific showing of
24
25 good cause or compelling reasons with proper evidentiary support and legal
26
justification, must be made with respect to Protected Material that a party seeks to
27
file under seal. The parties’ mere designation of Disclosure or Discovery Material
1 as CONFIDENTIAL does not— without the submission of competent evidence by
2 declaration, establishing that the material sought to be filed under seal qualifies as
3
confidential, privileged, or otherwise protectable—constitute good cause. Further, if
4
a party requests sealing related to a dispositive motion or trial, then compelling
5
6 reasons, not only good cause, for the sealing must be shown, and the relief sought
7
shall be narrowly tailored to serve the specific interest to be protected. See Pintos v.
8
9 Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or
10 type of information, document, or thing sought to be filed or introduced under seal,
11
the party seeking protection must articulate compelling reasons, supported by
12
13 specific facts and legal justification, for the requested sealing order. Again,
14 competent evidence supporting the application to file documents under seal must be
15
provided by declaration. Any document that is not confidential, privileged, or
16
17 otherwise protectable in its entirety will not be filed under seal if the confidential
18 portions can be redacted. If documents can be redacted, then a redacted version for
19
public viewing, omitting only the confidential, privileged, or otherwise protectable
20
21 portions of the document, shall be filed. Any application that seeks to file
22
documents under seal in their entirety should include an explanation of why
23
redaction is not feasible.
24
25 4. DEFINITIONS
26
4.1 Action: Michelle Finn, et al v. loanDepot.com, LLC, Case No. 8:23-cv-
27
00737-FWS-JDE.
1 4.2 Challenging Party: a Party or Non-Party that challenges the designation
2 of information or items under this Order.
3
4.3 “CONFIDENTIAL” Information or Items: information (regardless of
4
how it is generated, stored or maintained) or tangible things that qualify for
5
6 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
7
the Good Cause Statement.
8
9 4.4 Counsel (without qualifier): Outside Counsel of Record and House
10 Counsel (as well as their support staff).
11
4.5 Designating Party: a Party or Non-Party that designates information or
12
13 items that it produces in disclosures or in responses to discovery as
14 “CONFIDENTIAL.”
15
4.6 Disclosure or Discovery Material: all items or information, regardless
16
17 of the medium or manner in which it is generated, stored, or maintained (including,
18 among other things, testimony, transcripts, and tangible things), that are produced
19
or generated in disclosures or responses to discovery in this matter.
20
21 4.7 Expert: a person with specialized knowledge or experience in a matter
22
pertinent to the litigation who has been retained by a Party or its counsel to serve as
23
an expert witness or as a consultant in this Action.
24
25 4.8 House Counsel: attorneys who are employees of a party to this action.
26
House Counsel does not include Outside Counsel of Record or any other outside
27
counsel.
1 4.9 Non-Party: any natural person, partnership, corporation, association, or
2 other legal entity not named as a Party to this action.
3
4.10 Outside Counsel of Record: attorneys who are not employees of a
4
party to this action but are retained to represent or advise a party to this Action and
5
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.
8
9 4.11 Party: any party to this Action, including all of its officers, directors,
10 employees, consultants, retained experts, and Outside Counsel of Record (and their
11
support staffs).
12
13 4.12 Producing Party: a Party or Non-Party that produces Disclosure or
14 Discovery Material in this Action.
15
4.13 Professional Vendors: persons or entities that provide litigation support
16
17 services (e.g., photocopying, videotaping, translating, preparing exhibits or
18 demonstrations, and organizing, storing, or retrieving data in any form or medium)
19
and their employees and subcontractors.
20
21 4.14 Protected Material: any Disclosure or Discovery Material that is
22
designated as “CONFIDENTIAL.”
23
4.15 Receiving Party: a Party that receives Disclosure or Discovery Material
24
25 from a Producing Party.
26
5. SCOPE
27
The protections conferred by this Stipulation cover not only Protected
1 Material (as defined above), but also (1) any information copied or extracted from
2 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
3
Material; and (3) any testimony, conversations, or presentations by Parties or their
4
Counsel that might reveal Protected Material.
5
6 However, the protections conferred by this Stipulation do not cover the
7
following information: (a) any information that is in the public domain at the time
8
9 of disclosure to a Receiving Party or becomes part of the public domain after its
10 disclosure to a Receiving Party as a result of publication not involving a violation
11
of this Order, including becoming part of the public record through trial or
12
13 otherwise; and (b) any information known to the Receiving Party prior to the
14 disclosure or obtained by the Receiving Party after the disclosure from a source
15
who obtained the information lawfully and under no obligation of confidentiality to
16
17 the Designating Party. Any use of Protected Material at trial shall be governed by a
18 separate agreement or order.
19
6. DURATION
20
21 Once a case proceeds to trial, information that was designated as
22
CONFIDENTIAL or maintained pursuant to this protective order used or
23
introduced as an exhibit at trial becomes public and will be presumptively available
24
25 to all members of the public, including the press, unless compelling reasons
26
supported by specific factual findings to proceed otherwise are made to the trial
27
judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing
1 “good cause” showing for sealing documents produced in discovery from
2 “compelling reasons” standard when merits-related documents are part of court
3
record). Accordingly, the terms of this protective order do not extend beyond the
4
commencement of the trial.
5
6 7. DESIGNATING PROTECTED MATERIAL
7
7.1 Exercise of Restraint and Care in Designating Material for
8
9 Protection.
10 Each Party or Non-Party that designates information or items for protection
11
under this Order must take care to limit any such designation to specific material
12
13 that qualifies under the appropriate standards. The Designating Party must
14 designate for protection only those parts of material, documents, items, or oral or
15
written communications that qualify – so that other portions of the material,
16
17 documents, items, or communications for which protection is not warranted are not
18 swept unjustifiably within the ambit of this Order.
19
Mass, indiscriminate, or routinized designations are prohibited. Designations
20
21 that are shown to be clearly unjustified or that have been made for an improper
22
purpose (e.g., to unnecessarily encumber the case development process or to
23
impose unnecessary expenses and burdens on other parties) may expose the
24
25 Designating Party to sanctions.
26
If it comes to a Designating Party’s attention that information or items that it
27
designated for protection do not qualify for protection, that Designating Party must
1 promptly notify all other Parties that it is withdrawing the mistaken designation.
2 7.2 Manner and Timing of Designations.
3
Except as otherwise provided in this Order (see, e.g., second paragraph of
4
section 6.2(a) below), or as otherwise stipulated or ordered, Disclosure or
5
6 Discovery Material that qualifies for protection under this Order must be clearly so
7
designated before the material is disclosed or produced.
8
9 Designation in conformity with this Order requires:
10 (a) for information in documentary form (e.g., paper or electronic documents,
11
but excluding transcripts of depositions or other pretrial or trial proceedings),
12
13 that the Producing Party affix the legend “CONFIDENTIAL” to each page
14 that contains protected material. If only a portion or portions of the material
15
on a page qualifies for protection, the Producing Party also must clearly
16
17 identify the protected portion(s) (e.g., by making appropriate markings in the
18 margins).
19
A Party or Non-Party that makes original documents or materials available
20
21 for inspection need not designate them for protection until after the
22
inspecting Party has indicated which material it would like copied and
23
produced. During the inspection and before the designation, all of the
24
25 material made available for inspection shall be deemed “CONFIDENTIAL.”
26
After the inspecting Party has identified the documents it wants copied and
27
produced, the Producing Party must determine which documents, or portions
1 thereof, qualify for protection under this Agreement. Then, before producing
2 the specified documents, the Producing Party must affix the
3
“CONFIDENTIAL” legend to each page that contains Protected Material. If
4
only a portion or portions of the material on a page qualifies for protection,
5
6 the Producing Party also must clearly identify the protected portion(s) (e.g.,
7
by making appropriate markings in the margins).
8
9 (b) for testimony given in deposition or in other pretrial or trial proceedings,
10 that the Designating Party identify on the record, before the close of the
11
deposition, hearing, or other proceeding, all protected testimony.
12
13 (c) for information produced in some form other than documentary and for
14 any other tangible items, that the Producing Party affix in a prominent place
15
on the exterior of the container or containers in which the information or item
16
17 is stored the legend “CONFIDENTIAL.” If only a portion or portions of the
18 information or item warrant protection, the Producing Party, to the extent
19
practicable, shall identify the protected portion(s).
20
21 7.3 Inadvertent Failures to Designate.
22
If timely corrected, an inadvertent failure to designate qualified information
23
or items does not, standing alone, waive the Designating Party’s right to secure
24
25 protection under this Order for such material. Upon timely correction of a
26
designation, the Receiving Party must make reasonable efforts to assure that the
27
material is treated in accordance with the provisions of this Order.
1
2 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
3
8.1 Timing of Challenges. Any Party or Non-Party may challenge a
4
designation of confidentiality at any time that is consistent with the Court’s
5
6 Scheduling Order.
7
8.2 Meet and Confer. The Challenging Party shall initiate the dispute
8
9 resolution process under Local Rule 37-1 et seq.
10 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
11
joint stipulation pursuant to Local Rule 37-2.
12
13 8.4 Burden. The burden of persuasion in any such challenge proceeding
14 shall be on the Designating Party. Frivolous challenges, and those made for an
15
improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
16
17 other parties) may expose the Challenging Party to sanctions. Unless the
18 Designating Party has waived or withdrawn the confidentiality designation, all
19
parties shall continue to afford the material in question the level of protection to
20
21 which it is entitled under the Producing Party’s designation until the Court rules on
22
the challenge.
23
9. ACCESS TO AND USE OF PROTECTED MATERIAL
24
25 9.1 Basic Principles.
26
A Receiving Party may use Protected Material that is disclosed or produced
27
by another Party or by a Non-Party in connection with this case only for
1 prosecuting, defending, or attempting to settle this litigation. Such Protected
2 Material may be disclosed only to the categories of persons and under the
3
conditions described in this Order. When the litigation has been terminated, the
4
Receiving Party must comply with the provisions of section 15 below (FINAL
5
6 DISPOSITION). Protected Material must be stored and maintained by a Receiving
7
Party at a location and in a secure manner that ensures that access is limited to the
8
9 persons authorized under this Order.
10 9.2 Disclosure of “CONFIDENTIAL” Information or Items.
11
Unless otherwise ordered by the court or permitted in writing by the
12
13 Designating Party, a Receiving Party may disclose any information or item
14 designated “CONFIDENTIAL” only to:
15
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
16
17 employees of said Outside Counsel of Record to whom it is reasonably
18 necessary to disclose the information for this litigation and who have signed
19
the “Acknowledgment and Agreement to Be Bound” that is attached hereto
20
21 as Exhibit A;
22
(b) the officers, directors, and employees (including House Counsel) of the
23
Receiving Party to whom disclosure is reasonably necessary for this Action
24
25 and who have signed the “Acknowledgment and Agreement to Be Bound”
26
(Exhibit A);
27
1 (c) Experts (as defined in this Order) of the Receiving Party to whom
2 disclosure is reasonably necessary for this Action;
3
(d) the court and its personnel;
4
(e) court reporters and their staff, professional jury or trial consultants, mock
5
6 jurors, and Professional Vendors to whom disclosure is reasonably necessary
7
for this litigation and who have signed the “Acknowledgment and Agreement
8
9 to Be Bound” (Exhibit A);
10 (f) during their depositions, witnesses in the action to whom disclosure is
11
reasonably necessary and who have signed the “Acknowledgment and
12
13 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the
14 Designating Party or ordered by the court. Pages of transcribed deposition
15
testimony or exhibits to depositions that reveal Protected Material must be
16
17 separately bound by the court reporter and may not be disclosed to anyone
18 except as permitted under this Stipulated Protective Order.
19
(g) the author or recipient of a document containing the information or a
20
21 custodian or other person who otherwise possessed or knew the information.
22
(h) any mediators or settlement officers and their supporting personnel,
23
mutually agreed upon by any of the parties engaged in settlement
24
25 discussions.
26
27
1 10. PROTECTED MATERIAL SUBPOENAED OR
ORDERED PRODUCED IN OTHER LITIGATION
2
If a Party is served with a subpoena or a court order issued in other litigation
3
4 that compels disclosure of any information or items designated in this action as
5
“CONFIDENTIAL,” that Party must:
6
(a) promptly notify in writing the Designating Party. Such notification shall
7
8 include a copy of the subpoena or court order;
9
(b) promptly notify in writing the party who caused the subpoena or order to
10
11 issue in the other litigation that some or all of the material covered by the
12 subpoena or order is subject to this Protective Order. Such notification shall
13
include a copy of this Stipulated Protective Order; and
14
15 (c) cooperate with respect to all reasonable procedures sought to be pursued
16 by the Designating Party whose Protected Material may be affected. If the
17
Designating Party timely seeks a protective order, the Party served with the
18
19 subpoena or court order shall not produce any information designated in this
20 action as “CONFIDENTIAL” before a determination by the court from
21
which the subpoena or order issued, unless the Party has obtained the
22
23 Designating Party’s permission. The Designating Party shall bear the burden
24
and expense of seeking protection in that court of its confidential material –
25
and nothing in these provisions should be construed as authorizing or
26
27
1 encouraging a Receiving Party in this action to disobey a lawful directive
2 from another court.
3
11. A NON-PARTY’S PROTECTED MATERIAL
4 SOUGHT TO BE PRODUCED IN THIS LITIGATION
5
(a) The terms of this Order are applicable to information produced by a Non-
6
Party in this Action and designated as “CONFIDENTIAL.” Such information
7
8 produced by Non-Parties in connection with this litigation is protected by the
9
remedies and relief provided by this Order. Nothing in these provisions should be
10
11 construed as prohibiting 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
15 subject to an agreement with the Non-Party not to produce the Non-Party’s
16 confidential information, then the Party shall:
17
(1) promptly notify in writing the Requesting Party and the Non-Party that
18
19 some or all of the information requested is subject to a confidentiality
20 agreement with a Non-Party;
21
(2) promptly provide the Non-Party with a copy of the Stipulated Protective
22
23 Order in this Action, the relevant discovery request(s), and a reasonably
24
specific description of the information requested; and
25
(3) make the information requested available for inspection by the Non-
26
27 Party, if requested.
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
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
6 not produce any information in its possession or control that is subject to the
7
confidentiality agreement with the Non-Party before a determination by the court.
8
9 Absent a court order to the contrary, the Non-Party shall bear the burden and
10 expense of seeking protection in this court of its Protected Material.
11
12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
12
13 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
14 Protected Material to any person or in any circumstance not authorized under this
15
Stipulated Protective Order, the Receiving Party must immediately:
16
17 (a) notify in writing the Designating Party of the unauthorized disclosures,
18 (b) use its best efforts to retrieve all unauthorized copies of the Protected
19
Material,
20
21 (c) inform the person or persons to whom unauthorized disclosures were
22
made of all the terms of this Agreement, and
23
(d) request such person or persons to execute the “Acknowledgment and
24
25 Agreement to Be Bound” that is attached hereto as Exhibit A.
26
27
1 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
2
When a Producing Party gives notice to Receiving Parties that certain
3
4 inadvertently produced material is subject to a claim of privilege or other
5
protection, the obligations of the Receiving Parties are those set forth in Federal
6
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
7
8 whatever procedure may be established in an e-discovery order that provides for
9
production without prior privilege review. Pursuant to Federal Rule of Evidence
10
11 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
12 of a communication or information covered by the attorney-client privilege or work
13
product protection, the parties may incorporate their agreement in the Stipulated
14
15 Protective Order submitted to the Court.
16 14. MISCELLANEOUS
17
14.1 Right to Further Relief.
18
19 Nothing in this Order abridges the right of any person to seek its
20 modification by the Court in the future.
21
14.2 Right to Assert Other Objections.
22
23 By stipulating to this Protective Order, no Party waives any right it otherwise
24
would have to object to disclosing or producing any information or item on any
25
ground not addressed in this Stipulated Protective Order. Similarly, no Party waives
26
27
1 any right to object on any ground to use in evidence of any of the material covered
2 by this Protective Order.
3
14.3 Filing Protected Material.
4
A Party that seeks to file under seal any Protected Material must comply with
5
6 Local Civil Rule 79-5. Protected Material may only be filed under seal pursuant to a
7
court order authorizing the sealing of the specific Protected Material. If a Party’s
8
9 request to file Protected Material under seal is denied by the court, then the
10 Receiving Party may file the information in the public record unless otherwise
11
instructed by the court.
12
13 15. FINAL DISPOSITION
14 Within 60 days after the final disposition of this Action, as defined in Section
15
5, each Receiving Party must return all Protected Material to the Producing Party or
16
17 destroy such material. As used in this subdivision, “all Protected Material” includes
18 all copies, abstracts, compilations, summaries, and any other format reproducing or
19
capturing any of the Protected Material. Whether the Protected Material is returned
20
21 or destroyed, the Receiving Party must submit a written certification to the
22
Producing Party (and, if not the same person or entity, to the Designating Party) by
23
the 60 day deadline that (1) identifies (by category, where appropriate) all the
24
25 Protected Material that was returned or destroyed and (2) affirms that the Receiving
26
Party has not retained any copies, abstracts, compilations, summaries or any other
27
format reproducing or capturing any of the Protected Material. Notwithstanding this
| || Provision, Counsel are entitled to retain an archival copy of all pleadings, motion
2 || papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
3
deposition and trial exhibits, expert reports, attorney work product, and consultant
4
5 || and expert work product, even if such materials contain Protected Material. Any
6 || such archival copies that contain or constitute Protected Material remain subject to
7
this Protective Order as set forth in Section 5 (DURATION).
8
9 16. VIOLATION
10 Any violation of this Order may be punished by appropriate measures
11
including, without limitation, contempt proceedings and/or monetary sanctions.
13
14 | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
15
16
17 || DATED: July 20, 2023 JL
18 Me
19 J D. EARLY
30 ited States Magistrate Judge
21
22
23
24
25
26
27
28
1 Exhibit A
2 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
3
SOUTHERN DIVISION
4
MICHELLE FINN, individually and on Case No. 8:23-cv-00737-FWS-JDE
5
behalf of all other similarly situated,
ACKNOWLEDGEMENT AND
6
Plaintiff, AGREEMENT TO BE BOUND
7
v. Judge: Fred W. Slaughter
8
LOANDEPOT.COM, LLC.,
9
Defendant. Action filed: April 28, 2023
10
11
The undersigned hereby acknowledges that he/she has read the Protective
12
Order dated July 20, 2023, in the above-captioned action and attached hereto,
13
14 understands the terms thereof, and agrees to be bound by its terms.
15
The undersigned submits to the jurisdiction of the United States District Court,
16
Central District of California, in matters relating to the Protective Order and
17
18 understands that the terms of the Protective Order obligate him/her to use materials
19
designated as Confidential Information in accordance with the Order solely for the
20
purposes of the above-captioned action, and not to disclose any such Confidential
21
22 Information to any other person, firm, or concern.
23
The undersigned acknowledges that violation of the Protective Order may
24
result in penalties for contempt of Court.
25
26 Name:
Job Title:
27
Employer: