Opinion

Adrian Zavala v. First Advantage Background Services Corp.

Court: District Court, C.D. California
Filed: Aug 16, 2023
Cited by: 0 cases
Authority: More cited than 16.4%

distinguishing “good cause” showing for sealing documents produced in discovery from “compelling reasons” standard when merits- 16 related documents are part of court record

How later courts described this case

distinguishing “good cause” showing for sealing documents produced in discovery from “compelling reasons” standard when merits- 16 related documents are part of court record
even stipulated protective orders require good cause showing

Written by the judges who cited it.

The opinion

Youssef H. Hammoud, CA Bar No. 321934

Email: yh@lawhammoud.com

2 HAMMOUD LAW, P.C

3 3744 East Chapman Avenue, #F12269

Orange, California 92859

4 Telephone: (949) 301-9692

5 Facsimile: (949) 301-9693

Attorney for Plaintiff

Adrian Zavala

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

9 LOS ANGELES DIVISION

ADRIAN ZAVALA,

11 Case No.: 2:23-cv-02637-SPG-PD

12 Plaintiff,

13 STIPULATED PROTECTIVE

vs. ORDER1

15 FIRST ADVANTAGE BACKGROUND

16 SERVICES CORP.

Defendants.

1. A. PURPOSES AND LIMITATIONS

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

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 Stipulated Protective Order. The parties acknowledge that this Order does

24 not confer blanket protections on all disclosures or responses to discovery and that the

25 protection it affords from public disclosure and use extends only to the limited

27 1 This Stipulated Protective Order is substantially based on the model protective order

provided under Magistrate Judge Patricia Donahue’s Procedures.

information or items that are entitled to confidential treatment under the applicable

legal principles.

B. GOOD CAUSE STATEMENT

4 This action is likely to involve trade secrets, cost and pricing information and

other valuable commercial, financial, technical and/or proprietary information for

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

6 than prosecution of this action is warranted. This action will also likely involve

consumer protected personal information. Such confidential and proprietary materials

and information consist of, among other things, confidential business or financial

8 information, information regarding confidential business practices, or other

confidential commercial information (including information implicating privacy rights

of third parties), information otherwise generally unavailable to the public, or which

10 may be privileged or otherwise protected from disclosure under state or federal

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

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

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

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

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

14 end of the litigation, and serve the ends of justice, a protective order for such

information is justified in this matter. It is the intent of the parties that information will

not be designated as confidential for tactical reasons and that nothing be so designated

16 without a good faith belief that it has been maintained in a confidential, non-public

manner, and there is good cause why it should not be part of the public record of this

17 case.

C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

The parties further acknowledge, as set forth in Section 12.3, below, that this

Stipulated Protective Order does not entitle them to file confidential information under

21 seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and the

standards that will be applied when a party seeks permission from the court to file

material under seal.

There is a strong presumption that the public has a right of access to judicial

proceedings and records in civil cases. In connection with non-dispositive motions,

25 good cause must be shown to support a filing under seal. See Kamakana v. City and

County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors

Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,

27 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good

cause showing), and a specific showing of good cause or compelling reasons with

proper evidentiary support and legal justification, must be made with respect to

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

2 of Disclosure or Discovery Material as CONFIDENTIAL does not—without the

submission of competent evidence by declaration, establishing that the material sought

to be filed under seal qualifies as confidential, privileged, or otherwise protectable—

4 constitute good cause.

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

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

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

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

8 or type of information, document, or thing sought to be filed or introduced under seal

in connection with a dispositive motion or trial, the party seeking protection must

articulate compelling reasons, supported by specific facts and legal justification, for

10 the requested sealing order. Again, competent evidence supporting the application to

file documents under seal must be provided by declaration.

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

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

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

14 the confidential, privileged, or otherwise protectable portions of the document, shall

be filed. Any application that seeks to file documents under seal in their entirety should

include an explanation of why redaction is not feasible.

2. DEFINITIONS

2.1 Action: this pending federal lawsuit.

19 2.2 Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.

21 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under

Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

23 Statement.

24 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

25 support staff).

26 2.5 Designating Party: a Party or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

2.6 Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among

2 other things, testimony, transcripts, and tangible things), that are produced or generated

in disclosures or responses to discovery in this matter.

4 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent

to the litigation who has been retained by a Party or its counsel to serve as an expert

witness or as a consultant in this Action.

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

Counsel does not include Outside Counsel of Record or any other outside counsel.

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

9 legal entity not named as a Party to this action.

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

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

in this Action on behalf of that party or are affiliated with a law firm which has

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

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

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

15 support staffs).

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

17 Material in this Action.

18 2.13 Professional Vendors: persons or entities that provide litigation support

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

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

20 their employees and subcontractors.

2.14 Protected Material: any Disclosure or Discovery Material that is designated as

22 “CONFIDENTIAL.”

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

24 a Producing Party.

3. SCOPE

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

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

Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

Material; and (3) any testimony, conversations, or presentations by Parties or their

2 Counsel that might reveal Protected Material.

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

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

4. DURATION

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

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

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

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

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

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

proceedings in this case are complete.

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

CONFIDENTIAL or maintained pursuant to this protective order used or introduced

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

of the public, including the press, unless compelling reasons supported by specific

factual findings to proceed otherwise are made to the trial judge in advance of the trial.

15 See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing

documents produced in discovery from “compelling reasons” standard when merits-

related documents are part of court record). Accordingly, for such materials, the terms

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

5. DESIGNATING PROTECTED MATERIAL

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

Party or Non-Party that designates information or items for protection under this Order

21 must take care to limit any such designation to specific material that qualifies under

the appropriate standards. The Designating Party must designate for protection only

those parts of material, documents, items, or oral or written communications that

23 qualify so that other portions of the material, documents, items, or communications for

which protection is not warranted are not swept unjustifiably within the ambit of this

Order.

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

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

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

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

to sanctions.

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

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

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

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

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

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

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

Designation in conformity with this Order requires:

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

excluding transcripts of depositions or other pretrial or trial proceedings), that the

11 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

“CONFIDENTIAL legend”), to each page that contains protected material. If only a

portion or portions of the material on a page qualifies for protection, the Producing

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

markings in the margins).

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

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

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

17 the designation, all of the material made available for inspection shall be deemed

“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

copied and produced, the Producing Party must determine which documents, or

19 portions thereof, qualify for protection under this Order. Then, before producing the

specified documents, the Producing Party must affix the “CONFIDENTIAL legend”

to each page that contains Protected Material. If only a portion or portions of the

21 material on a page qualifies for protection, the Producing Party also must clearly

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

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

Disclosure or Discovery Material on the record, or, within 30 days of the close of the

deposition, identify all protected testimony.

26 tangible items, that the Producing Party affix in a prominent place on the exterior of the

27 container or containers in which the information is stored the legend

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

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

portion(s).

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

designate qualified information or items does not, standing alone, waive the

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

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

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

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

8 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time that is consistent with the Court’s Scheduling Order.

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

process under Local Rule 37.1 et seq.

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

Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

13 to harass or impose unnecessary expenses and burdens on other parties) may expose

the Challenging Party to sanctions. Unless the Designating Party has waived or

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

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

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

17 7. ACCESS TO AND USE OF PROTECTED MATERIAL

18 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed

19 or produced by another Party or by a Non-Party in connection with this Action only

for prosecuting, defending, or attempting to settle this Action. Such Protected Material

20 may be disclosed only to the categories of persons and under the conditions described

21 in this Order. When the Action has been terminated, a Receiving Party must comply

with the provisions of section 13 below (FINAL DISPOSITION).

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

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

24 under this Order.

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

26 ordered by the court or permitted in writing by the Designating Party, a Receiving

Party may disclose any information or item designated “CONFIDENTIAL” only to:

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

employees of said Outside Counsel of Record to whom it is reasonably necessary to

2 disclose the information for this Action;

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

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

6 reasonably necessary for this Action and who have signed the “Acknowledgment and

Agreement to Be Bound” (Exhibit A);

8 (d) the court and its personnel;

9 (e) court reporters and their staff;

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

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

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

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

or other person who otherwise possessed or knew the information;

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

whom disclosure is reasonably necessary provided: (1) the deposing party requests that

the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be

17 permitted to keep any confidential information unless they sign the “Acknowledgment

and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

18 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

19 depositions that reveal Protected Material may be separately bound by the court

reporter and may not be disclosed to anyone except as permitted under this Stipulated

20 Protective Order; and

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

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

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

24 OTHER LITIGATION

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

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

“CONFIDENTIAL,” that Party must:

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

a copy of the subpoena or court order;

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

in the other litigation that some or all of the material covered by the subpoena or order

4 is subject to this Protective Order. Such notification shall include a copy of this

Stipulated Protective Order; and

6 (c) cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected.

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

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

9 as “CONFIDENTIAL” before a determination by the court from which the subpoena

10 or order issued, unless the Party has obtained the Designating Party’s permission. The

Designating Party shall bear the burden and expense of seeking protection in that court

11 of its confidential material and nothing in these provisions should be construed as

12 authorizing or encouraging a Receiving Party in this Action to disobey a lawful

directive from another court.

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

PRODUCED IN THIS LITIGATION

(a) The terms of this Order are applicable to information produced by a Non-Party

in this Action and designated as “CONFIDENTIAL.” Such information produced by

17 Non-Parties in connection with this litigation is protected by the remedies and relief

provided by this Order. Nothing in these provisions should be construed as prohibiting

a Non-Party from seeking additional protections.

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

Non-Party’s confidential information in its possession, and the Party is subject to an

21 agreement with the Non-Party not to produce the Non-Party’s confidential

information, then the Party shall:

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

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

24 with a Non-Party;

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

26 Order in this Action, the relevant discovery request(s), and a reasonably specific

description of the information requested; and

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

Party, if requested.

of receiving the notice and accompanying information, the Receiving Party may

4 produce the Non-Party’s confidential information responsive to the discovery request.

If the Non-Party timely seeks a protective order, the Receiving Party shall not produce

any information in its possession or control that is subject to the confidentiality

6 agreement with the Non-Party before a determination by the court. Absent a court order

to the contrary, the Non-Party shall bear the burden and expense of seeking protection

in this court of its Protected Material.

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

12 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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

13 whom unauthorized disclosures were made of all the terms of this Order, and (d)

14 request such person or persons to execute the “Acknowledgment and Agreement to Be

Bound” that is attached hereto as Exhibit A.

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain

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

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

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

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

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

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

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

23 parties may incorporate their agreement in the stipulated protective order submitted to

the court.

25 12. MISCELLANEOUS

26 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person

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

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

Order no Party waives any right it otherwise would have to object to disclosing or

2 producing any information or item on any ground not addressed in this Stipulated

Protective Order. Similarly, no Party waives any right to object on any ground to use

in evidence of any of the material covered by this Protective Order.

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

Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

6 under seal pursuant to a court order authorizing the sealing of the specific Protected

Material at issue. If a Party's request to file Protected Material under seal is denied by

the court, then the Receiving Party may file the information in the public record unless

8 otherwise instructed by the court.

13. FINAL DISPOSITION

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

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

12 all Protected Material to the Producing Party or destroy such material. As used in this

subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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

14 Material. Whether the Protected Material is returned or destroyed, the Receiving Party

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

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

16 category, where appropriate) all the Protected Material that was returned or destroyed

and (2)affirms that the Receiving Party has not retained any copies, abstracts,

17 compilations, summaries or any other format reproducing or capturing any of the

18 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

19 legal memoranda, correspondence, deposition and trial exhibits, expert reports,

20 attorney work product, and consultant and expert work product, even if such materials

contain Protected Material. Any such archival copies that contain or constitute

21 Protected Material remain subject to this Protective Order as set forth in Section 4

22 (DURATION).

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

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

sanctions.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: August 14, 2023

2 /s/ Youssef Hammoud

3 Youssef Hammoud, CA #321934

E: yh@lawhammoud.com

4 HAMMOUD LAW, P.C.

5 3744 E. Chapman Ave., #F12269

Orange, CA 92859

T: (949) 301-9692

7 F: (949) 301-9693

Attorneys for Plaintiff

Adrian Zavala

/s/Jason A. Spak

Jason A. Spak [admitted pro hac vice]

11 FisherBroyles, LLP

6360 Broad Street #5262

Pittsburgh, PA 15206

13 T: 412-230-8555

14 E: jason.spak@fisherbroyles.com

15 David N. Makous [SBN #82409]

16 FisherBroyles, LLP

9350 Wilshire Blvd., Suite 203

Beverly Hills, CA 90212

18 T: 310-974-3224

E: david.makous@fisherbroyles.com

Counsel for Defendant,

20 FIRST ADVANTAGE BACKGROUND

SERVICES CORP.

1 ATTESTATION OF SIGNATURE

9 Pursuant to Local Rule 5-4.3.4(a)(2)(i) regarding signatures, I, Youssef

3 || Hammoud, hereby attests that concurrence in the filing of this document and its

4 || content has been obtained from the other signatories.

6 Dated: August 14, 2023 /s/Youssef Hammoud

g DATED: August 16, 2023 .

9 AP abevie Lona hoe

10 Honorable Patricia Donahue

1 United States Magistrate Judge

EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, ________________________ [print or type full name], of _________________

4 [print or type full address], declare under penalty of perjury that I have read in its

5 entirety and understand the Stipulated Protective Order that was issued by the United

States District Court for the Central District of California on [date] in the case of

6 __________ [insert formal name of the case and the number and initials assigned to it

7 by the court]. I agree to comply with and to be bound by all the terms of this Stipulated

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

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

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

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

10 provisions of this Order.

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

12 Central District of California for the purpose of enforcing the terms of this Stipulated

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

action. I hereby appoint ________________________ [print or type full name] of

14 _________ [print or type full address and telephone number] as my California agent

for service of process in connection with this action or any proceedings related to

enforcement of this Stipulated Protective Order.

18 Date: __________________________

19 City and State where sworn and signed: _____________________________

Printed name: ____________________________________

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.