The opinion
|| CALIFORNIA CONSUMER ATTORNEYS, P.C.
Michael H. Rosenstein (SBN 169091)
2 || mhr@calattorneys.com
3 || Sepehr Daghighian (SBN 239349) Note Court's comments below.
4 sd@calattorneys.com MRW
Brian T. Shippen-Murray (SBN 288188)
5 || btm@calattorneys.com
6 10866 Wilshire Blvd, Suite 1200
Los Angeles, CA 90024
7 || Telephone: (310) 872-2600
g || Facsimile: (310) 730-7377
9 || Attorneys for Plaintiff,
10 CORY ANDERSON
1]
UNITED STATES DISTRICT COURT
3 CENTRAL DISTRICT OF CALIFORNIA
14 ||} CORY ANDERSON, an individual, Case No.: 2:23-cv-00162 FMO (MRWx)
IS STIPULATED PROTECTIVE
16 Plaintiff, ORDER
M7 Vs. (MRW VERSION 4/19)
18
Check if submitted without material
BMW OF NORTH AMERICA, LLC, a_ | □□ fications to MRW form
20 Delaware, and DOES 1 through 10, og.
91 || inclusive, Date Filed: January 10, 2023
Trial Date: January 23, 2024
22
23 Defendants.
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STIPULATED PROTECTIVE ORDER
1 1. INTRODUCTION
2 1.1 PURPOSES AND LIMITATIONS
3 Discovery in this action is likely to involve production of confidential,
4 proprietary, or private information for which special protection from public
5 disclosure and from use for any purpose other than prosecuting this litigation may
6 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
7 enter the following Stipulated Protective Order. The parties acknowledge that this
8
Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends
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only to the limited information or items that are entitled to confidential treatment
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under the applicable legal principles. The parties further acknowledge, as set forth
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in Section 12.3, below, that this Stipulated Protective Order does not entitle them
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to file confidential information under seal; Civil Local Rule 79-5 sets forth the
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procedures that must be followed and the standards that will be applied when a
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party seeks permission from the court to file material under seal.
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1.2 GOOD CAUSE STATEMENT
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Defendant BMW contends that…
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This is inadequate. However, Judge Wilner is familiar enough with SBA cases to
19 understand that business-related materials and documents with consumer info require
20 [ The parties must provide a statement establishing good cause for the entry of
protection. MRW
21 this pretrial protective order. C.f. Oliner v. Kontrabecki, 745 F.3d 1024, 1026
22 (9th Cir. 2014). The parties’ statement must be specific to the facts and issues
23 of this case, including the nature of the action, the type of anticipated
24 discovery, and the potential resulting harm should relevant materials be
25 disclosed publicly. The parties are advised not to rely on boilerplate
26 assertions regarding good cause]
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2. DEFINITIONS
1 2.1 Action: This pending Federal Lawsuit.
2 2.2 Challenging Party: a Party or Non-Party that challenges the
3 designation of information or items under this Order.
4 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
5 how it is generated, stored or maintained) or tangible things that qualify for
6 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
7 the Good Cause Statement.
8 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
9
their support staff).
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2.5 Designating Party: a Party or Non-Party that designates information
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or items that it produces in disclosures or in responses to discovery as
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“CONFIDENTIAL.”
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2.6 Disclosure or Discovery Material: all items or information, regardless
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of the medium or manner in which it is generated, stored, or maintained (including,
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among other things, testimony, transcripts, and tangible things), that are produced
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or generated in disclosures or responses to discovery in this matter.
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2.7 Expert: a person with specialized knowledge or experience in a
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matter pertinent to the litigation who has been retained by a Party or its counsel to
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20 serve as an expert witness or as a consultant in this Action.
21 2.8 House Counsel: attorneys who are employees of a party to this
22 Action. House Counsel does not include Outside Counsel of Record or any other
23 outside counsel.
24 2.9 Non-Party: any natural person, partnership, corporation, association,
25 or other legal entity not named as a Party to this action.
26 2.10 Outside Counsel of Record: attorneys who are not employees of a
27 party to this Action but are retained to represent or advise a party to this Action
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1 and have appeared in this Action on behalf of that party or are affiliated with a law
2 firm which has appeared on behalf of that party, and includes support staff.
3 2.11 Party: any party to this Action, including all of its officers, directors,
4 employees, consultants, retained experts, and Outside Counsel of Record (and their
5 support staffs).
6
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
7
Discovery Material in this Action.
8
2.13 Professional Vendors: persons or entities that provide litigation
9
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
10
demonstrations, and organizing, storing, or retrieving data in any form or medium)
11
and their employees and subcontractors.
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2.14 Protected Material: any Disclosure or Discovery Material that is
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designated as “CONFIDENTIAL.”
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2.15 Receiving Party: a Party that receives Disclosure or Discovery
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Material from a Producing Party.
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3. SCOPE
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19 The protections conferred by this Stipulation and Order cover not only
20 Protected Material (as defined above), but also (1) any information copied or
21 extracted from Protected Material; (2) all copies, excerpts, summaries, or
22 compilations of Protected Material; and (3) any testimony, conversations, or
23 presentations by Parties or their Counsel that might reveal Protected Material.
24 Any use of Protected Material at trial will be governed by the orders of the
25 trial judge. This Order does not govern the use of Protected Material at trial.
26
27 4. DURATION
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1 ONCE A CASE PROCEEDS TO TRIAL, ALL OF THE INFORMATION
2 THAT WAS DESIGNATED AS CONFIDENTIAL OR MAINTAINED
3 PURSUANT TO THIS PROTECTIVE ORDER BECOMES PUBLIC AND WILL
4 BE PRESUMPTIVELY AVAILABLE TO ALL MEMBERS OF THE PUBLIC,
5 INCLUDING THE PRESS, UNLESS COMPELLING REASONS SUPPORTED
6 BY SPECIFIC FACTUAL FINDINGS TO PROCEED OTHERWISE ARE
7 MADE TO THE TRIAL JUDGE IN ADVANCE OF THE TRIAL. SEE
8 KAMAKANA V. CITY AND COUNTY OF HONOLULU, 447 F.3D 1172, 1180-
9 81 (9TH CIR. 2006) (DISTINGUISHING “GOOD CAUSE” SHOWING FOR
10 SEALING DOCUMENTS PRODUCED IN DISCOVERY FROM
11 “COMPELLING REASONS” STANDARD WHEN MERITS-RELATED
12 DOCUMENTS ARE PART OF COURT RECORD). ACCORDINGLY, THE
13 TERMS OF THIS PROTECTIVE ORDER DO NOT EXTEND BEYOND THE
14 COMMENCEMENT OF THE TRIAL.
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17 5. DESIGNATING PROTECTED MATERIAL
18 5.1 Exercise of Restraint and Care in Designating Material for Protection.
19 Each Party or Non-Party that designates information or items for protection under
20 this Order must take care to limit any such designation to specific material that
21 qualifies under the appropriate standards. The Designating Party must designate
22 for protection only those parts of material, documents, items, or oral or written
23
communications that qualify so that other portions of the material, documents,
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items, or communications for which protection is not warranted are not swept
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unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited.
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Designations that are shown to be clearly unjustified or that have been made for an
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1 improper purpose (e.g., to unnecessarily encumber the case development process
2 or to impose unnecessary expenses and burdens on other parties) may expose the
3 Designating Party to sanctions.
4 If it comes to a Designating Party’s attention that information or items that it
5 designated for protection do not qualify for protection, that Designating Party must
6 promptly notify all other Parties that it is withdrawing the inapplicable designation.
7 5.2 Manner and Timing of Designations. Except as otherwise provided in
8 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
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under this Order must be clearly so designated before the material is disclosed or
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produced.
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Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic
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documents, but excluding transcripts of depositions or other pretrial or trial
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proceedings), that the Producing Party affix at a minimum, the legend
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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
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contains protected material. If only a portion or portions of the material on a page
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qualifies for protection, the Producing Party also must clearly identify the
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20 protected portion(s) (e.g., by making appropriate markings in the margins).
21 A Party or Non-Party that makes original documents available for
22 inspection need not designate them for protection until after the inspecting Party
23 has indicated which documents it would like copied and produced. During the
24 inspection and before the designation, all of the material made available for
25 inspection will be deemed “CONFIDENTIAL.” After the inspecting Party has
26 identified the documents it wants copied and produced, the Producing Party must
27 determine which documents, or portions thereof, qualify for protection under this
28 Order. Then, before producing the specified documents, the Producing Party must
1 affix the “CONFIDENTIAL legend” to each page that contains Protected Material.
2 If only a portion or portions of the material on a page qualifies for protection, the
3 Producing Party also must clearly identify the protected portion(s) (e.g., by making
4 appropriate markings in the margins).
5 (b) for testimony given in depositions that the Designating Party identify the
6 Disclosure or Discovery Material on the record, before the close of the deposition
7 all protected testimony.
8 (c) for information produced in some form other than documentary and for
9 any other tangible items, that the Producing Party affix in a prominent place on the
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exterior of the container or containers in which the information is stored the
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legend “CONFIDENTIAL.” If only a portion or portions of the information
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warrants protection, the Producing Party, to the extent practicable, will identify the
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protected portion(s).
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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure to designate qualified information or items does not, standing alone, waive
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the Designating Party’s right to secure protection under this Order for such
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material. Upon timely correction of a designation, the Receiving Party must make
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reasonable efforts to assure that the material is treated in accordance with the
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provisions of this Order.
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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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23 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
24 designation of confidentiality at any time that is consistent with the Court’s
25 Scheduling Order.
26 6.2 Meet and Confer. The Challenging Party will initiate the dispute
27 resolution process (and, if necessary, file a discovery motion) under Local Rule
28 37.1 et seq.
1 6.3 The burden of persuasion in any such challenge proceeding will be on
2 the Designating Party. Frivolous challenges, and those made for an improper
3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
4 parties) may expose the Challenging Party to sanctions. Unless the Designating
5 Party has waived or withdrawn the confidentiality designation, all parties will
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continue to afford the material in question the level of protection to which it is
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entitled under the Producing Party’s designation until the Court rules on the
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challenge.
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7. ACCESS TO AND USE OF PROTECTED MATERIAL
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7.1 Basic Principles. A Receiving Party may use Protected Material that is
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disclosed or produced by another Party or by a Non-Party in connection with this
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Action only for prosecuting, defending, or attempting to settle this Action. Such
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Protected Material may be disclosed only to the categories of persons and under
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the conditions described in this Order. When the Action has been terminated, a
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Receiving Party must comply with the provisions of section 13 below (FINAL
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18 DISPOSITION).
19 Protected Material must be stored and maintained by a Receiving Party at a
20 location and in a secure manner that ensures that access is limited to the persons
21 authorized under this Order.
22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
23 otherwise ordered by the court or permitted in writing by the Designating Party, a
24 Receiving Party may disclose any information or item designated
25 “CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this Action, as
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well as employees of said Outside Counsel of Record to whom it is reasonably
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necessary to disclose the information for this Action;
1 (b) the officers, directors, and employees (including House Counsel) of
2 the Receiving Party to whom disclosure is reasonably necessary for this Action;
3 (c) Experts (as defined in this Order) of the Receiving Party to whom
4 disclosure is reasonably necessary for this Action and who have signed the
5 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d) the Court and its personnel;
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(e) court reporters and their staff;
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(f) professional jury or trial consultants, mock jurors, and Professional
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Vendors to whom disclosure is reasonably necessary for this Action and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(g) the author or recipient of a document containing the information or a
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custodian or other person who otherwise possessed or knew the information;
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(h) during their depositions, witnesses ,and attorneys for witnesses, in
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the Action to whom disclosure is reasonably necessary provided: (1) the deposing
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party requests that the witness sign the form attached as Exhibit A hereto; and (2)
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17 they will not be permitted to keep any confidential information unless they sign the
18 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
19 agreed by the Designating Party or ordered by the court. Pages of transcribed
20 deposition testimony or exhibits to depositions that reveal Protected Material may
21 be separately bound by the court reporter and may not be disclosed to anyone
22 except as permitted under this Stipulated Protective Order; and
23 (i) any mediator or settlement officer, and their supporting personnel,
24 mutually agreed upon by any of the parties engaged in settlement discussions.
25
26 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
27 IN OTHER LITIGATION
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1 If a Party is served with a subpoena or a court order issued in other litigation
2 that compels disclosure of any information or items designated in this Action as
3 “CONFIDENTIAL,” that Party must:
4 (a) promptly notify in writing the Designating Party. Such notification
5 will include a copy of the subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or
7
order to issue in the other litigation that some or all of the material covered by the
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subpoena or order is subject to this Protective Order. Such notification will
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include a copy of this Stipulated Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be
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pursued by the Designating Party whose Protected Material may be affected.
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If the Designating Party timely seeks a protective order, the Party served
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with the subpoena or court order will not produce any information designated in
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this action as “CONFIDENTIAL” before a determination by the court from which
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the subpoena or order issued, unless the Party has obtained the Designating Party’s
16
17 permission. The Designating Party will bear the burden and expense of seeking
18 protection in that court of its confidential material and nothing in these provisions
19 should be construed as authorizing or encouraging a Receiving Party in this Action
20 to disobey a lawful directive from another court.
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22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
23 PRODUCED IN THIS LITIGATION
24 (a) The terms of this Order are applicable to information produced by a
25 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
26 produced by Non-Parties in connection with this litigation is protected by the
27 remedies and relief provided by this Order. Nothing in these provisions should be
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construed as prohibiting a Non-Party from seeking additional protections.
1 (b) In the event that a Party is required, by a valid discovery request, to
2 produce a Non-Party’s confidential information in its possession, and the Party is
3 subject to an agreement with the Non-Party not to produce the Non-Party’s
4 confidential information, then the Party will:
5 (1) promptly notify in writing the Requesting Party and the Non-
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Party that some or all of the information requested is subject to a confidentiality
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agreement with a Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this Action, the relevant discovery request(s), and a reasonably
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specific description of the information requested; and
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(3) make the information requested available for inspection by the
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Non-Party, if requested.
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(c) If the Non-Party fails to seek a protective order from this court within
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14 days of receiving the notice and accompanying information, the Receiving
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Party may produce the Non-Party’s confidential information responsive to the
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17 discovery request. If the Non-Party timely seeks a protective order, the Receiving
18 Party will not produce any information in its possession or control that is subject to
19 the confidentiality agreement with the Non-Party before a determination by the
20 court. Absent a court order to the contrary, the Non-Party will bear the burden
21 and expense of seeking protection in this court of its Protected Material.
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23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
24 If a Receiving Party learns that, by inadvertence or otherwise, it has
25 disclosed Protected Material to any person or in any circumstance not authorized
26 under this Stipulated Protective Order, the Receiving Party must immediately (a)
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notify in writing the Designating Party of the unauthorized disclosures, (b) use its
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best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
1 the person or persons to whom unauthorized disclosures were made of all the terms
2 of this Order, and (d) request such person or persons to execute the
3 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
4 A.
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6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
7 PROTECTED MATERIAL
8 When a Producing Party gives notice to Receiving Parties that certain
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inadvertently produced material is subject to a claim of privilege or other
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protection, the obligations of the Receiving Parties are those set forth in Federal
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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order that provides for
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production without prior privilege review. Pursuant to Federal Rule of Evidence
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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
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of a communication or information covered by the attorney-client privilege or
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work product protection, the parties may incorporate their agreement in the
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stipulated protective order submitted to the court.
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12. MISCELLANEOUS
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12.1 Right to Further Relief. Nothing in this Order abridges the right of
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22 any person to seek its modification by the Court in the future.
23 12.2 Right to Assert Other Objections. By stipulating to the entry of this
24 Protective Order no Party waives any right it otherwise would have to object to
25 disclosing or producing any information or item on any ground not addressed in
26 this Stipulated Protective Order. Similarly, no Party waives any right to object on
27 any ground to use in evidence of any of the material covered by this Protective
28 Order.
1 12.3 Filing Protected Material. A Party that seeks to file under seal any
2 Protected Material must comply with Civil Local Rule 79-5. Protected Material
3 may only be filed under seal pursuant to a court order authorizing the sealing of the
4 specific Protected Material at issue. If a Party's request to file Protected Material
5 under seal is denied by the court, then the Receiving Party may file the information
6
in the public record unless otherwise instructed by the court.
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13. FINAL DISPOSITION
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After the final disposition of this Action, as defined in paragraph 4, within
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60 days of a written request by the Designating Party, each Receiving Party must
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return all Protected Material to the Producing Party or destroy such material. As
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used in this subdivision, “all Protected Material” includes all copies, abstracts,
13
compilations, summaries, and any other format reproducing or capturing any of the
14
Protected Material. Whether the Protected Material is returned or destroyed, the
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Receiving Party must submit a written certification to the Producing Party (and, if
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not the same person or entity, to the Designating Party) by the 60 day deadline that
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(1) identifies (by category, where appropriate) all the Protected Material that was
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19 returned or destroyed and (2) affirms that the Receiving Party has not retained any
20 copies, abstracts, compilations, summaries or any other format reproducing or
21 capturing any of the Protected Material. Notwithstanding this provision, Counsel
22 are entitled to retain an archival copy of all pleadings, motion papers, trial,
23 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
24 and trial exhibits, expert reports, attorney work product, and consultant and expert
25 work product, even if such materials contain Protected Material. Any such
26 archival copies that contain or constitute Protected Material remain subject to this
27
Protective Order as set forth in Section 4 (DURATION).
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1 Any willful violation of this Order may be punished by civil or criminal
2 ||contempt proceedings, financial or evidentiary sanctions, reference to disciplinary
3 || authorities, or other appropriate action at the discretion of the Court.
4
5 | ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6
7 || DATED: 8/16/2023 /s/ Sepehr Daghighian
Attorneys for Plaintiff
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10 |} DATED: 8/16/2023 /s/ Georges A. Haddad
Attomeys for Defendant
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13 GOOD CAUSE SHOWN, IT IS SO ORDERED.
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16 |IDATED: August 21, 2023 Mf —
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19 HON. MICHAEL R. WILNER
United States Magistrate Judge
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In the future, the parties are advised to comply with the requirement under
the Local Rules to provide a proposed order in Word format. MRW
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-14-
STIPULATED PROTECTIVE ORDER
1 SIGNATURE ATTESTATION
2 Pursuant to Local Rule 5-4.3.4(a)(2)(i), I hereby certify that the content of this
3 document is acceptable to Georges A. Haddad, counsel for Defendant BMW OF
4 NORTH AMERICA, LLC, and that I have obtained Georges A. Haddad’s
5 authorization to affix his electronic signature to this document.
6
7 Respectfully submitted,
8
CALIFORNIA CONSUMER ATTORNEYS, P.C.
9
10
/s/ Sepehr Daghighian
11
Michael H. Rosenstein, Esq.
12 Sepehr Daghighian, Esq.
Brian T. Shippen-Murray, Esq.
13
Attorneys for Plaintiff:
14 CORY ANDERSON
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [full name], of _________________
5 [full address], declare under penalty of perjury that I have read in its entirety and
6 understand the Stipulated Protective Order that was issued by the United States
7 District Court for the Central District of California on [date] in the case of
8 ___________ [insert case name and number]. I agree to comply with and to be
9 bound by all the terms of this Stipulated Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and
11 punishment in the nature of contempt. I solemnly promise that I will not disclose in
12 any manner any information or item that is subject to this Stipulated Protective
13 Order to any person or entity except in strict compliance with the provisions of this
14 Order.
15 I further agree to submit to the jurisdiction of the United States District
16 Court for the Central District of California for the purpose of enforcing the terms
17 of this Stipulated Protective Order, even if such enforcement proceedings occur
18 after termination of this action. I hereby appoint __________________________
19 [full name] of _______________________________________ [full address and
20 telephone number] as my California agent for service of process in connection
21 with this action or any proceedings related to enforcement of this Stipulated
22 Protective Order.
23 Date: ______________________________________
24 City and State where signed: _________________________________
25
26 Printed name: _______________________________
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28 Signature: __________________________________