distinguishing “good cause” 8 || showing for sealing documents produced in discovery from “compelling reasons” 9 || standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 8 || showing for sealing documents produced in discovery from “compelling reasons” 9 || standard when merits-related documents are part of court record
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
10
2 11 || CINDY OSUNA, Case No. 2:22-cv-07960-ODW-PVCx
1 Plaintiff,
o STIPULATED PROTECTIVE
z 13 V. ORDER
14|| TARGET CORPORATION, an entity
< unknown; DAVID RICO, an individual;
= 15 || and DOES 1 through 50, inclusive,
16 Defendants.
seme
18 ]} 1. INTRODUCTION
19 1.1 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
22 || disclosure and from use for any purpose other than prosecuting this litigation may
23 ||be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
24 || enter the following Stipulated Protective Order. The parties acknowledge that this
25 || Order does not confer blanket protections on all disclosures or responses to
26 || discovery and that the protection it affords from public disclosure and use extends
27 || only to the limited information or items that are entitled to confidential treatment
28 || under the applicable legal principles. The parties further acknowledge, as set forth
1 |/in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
2 || file confidential information under seal; Civil Local Rule 79-5 sets forth the
3 || procedures that must be followed and the standards that will be applied when a party
4 || seeks permission from the court to file material under seal.
5 1.2 GOOD CAUSE STATEMENT
6 Discovery in this action relates to proprietary and confidential information
7 || related to the ongoing business practices of Target Corporation. Disclosure of such
8 || evidence to the public could result in the disclosure of confidential business
9 || practices to competitors. Further, this material has the potential to disclose the
n 10 || contact information as well as personal information of both Target employees as
2 11 || well as the Plaintiff.
12 For purposes of this Stipulated Protective Order, “Confidential Materials” is
> 13 || specifically defined as follows:
14 - Team Member Handbook (Hourly);
15 - Team Member Handbook (Executive);
16 - Spill Clean-Up Procedures;
17 - Basic Safeness - Guest Incidents;
18 - Basic Safeness Sales Floor Guide (Employee);
19 - Basic Safeness Sales Floor Guide (Trainer);
20 - Armstrong Vinyl Tile Spec Sheet.
21 2. DEFINITIONS
22 2.1 Action: This pending federal lawsuit. Bearing case No. Case No. 2:22-
23 || cv-07960-ODW-PVC.
24 2.2 Challenging Party: a Party or Non-Party that challenges the
25 || designation of information or items under this Order.
26 2.3. “CONFIDENTIAL” Information or Items: information (regardless of
27 || how it is generated, stored or maintained) or tangible things that qualify for
28
1 || protection under Federal Rule of Civil Procedure 26(c), and as specified above in
2 || the Good Cause Statement.
3 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
4 || their support staff).
5 2.5 Designating Party: a Party or Non-Party that designates information or
6 || items that it produces in disclosures or in responses to discovery as
7 || “CONFIDENTIAL.”
8 2.6 Disclosure or Discovery Material: all items or information, regardless
9 || of the medium or manner in which it is generated, stored, or maintained (including,
n 10 || among other things, testimony, transcripts, and tangible things), that are produced or
2 11 || generated in disclosures or responses to discovery in this matter.
12 2.7 Expert: a person with specialized knowledge or experience in a matter
> 13 || pertinent to the litigation who has been retained by a Party or its counsel to serve as
14 || an expert witness or as a consultant in this Action.
15 2.8 House Counsel: attorneys who are employees of a party to this Action.
16 || House Counsel does not include Outside Counsel of Record or any other outside
17 || counsel.
18 2.9 Non-Party: any natural person, partnership, corporation, association, or
19 || other legal entity not named as a Party to this action.
20 2.10 Outside Counsel of Record: attorneys who are not employees of a
21 || party to this Action but are retained to represent or advise a party to this Action and
22 || have appeared in this Action on behalf of that party or are affiliated with a law firm
23 || which has appeared on behalf of that party, and includes support staff.
24 2.11 Party: any party to this Action, including all of its officers, directors,
25 ||employees, consultants, retained experts, and Outside Counsel of Record (and their
26 || support staffs).
27 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
28 || Discovery Material in this Action.
l 2.13 Professional Vendors: persons or entities that provide litigation
2 || support services (e.g., photocopying, videotaping, translating, preparing exhibits or
3 || demonstrations, and organizing, storing, or retrieving data in any form or medium)
4 || and their employees and subcontractors.
5 2.14 Protected Material: any Disclosure or Discovery Material that is
6 || designated as “CONFIDENTIAL.”
7 For purposes of this Stipulated Protective Order, “Protected Material” is
8 || specifically defined as follows:
9 - Team Member Handbook (Hourly);
n 10 - Team Member Handbook (Executive);
2 11 - Spill Clean-Up Procedures;
12 - Basic Safeness - Guest Incidents;
> 13 - Basic Safeness Sales Floor Guide (Employee);
14 - Basic Safeness Sales Floor Guide (Trainer);
= 15 - Armstrong Vinyl Tile Spec Sheet.
16 2.15 Receiving Party: a Party that receives Disclosure or Discovery
17 || Material from a Producing Party.
18 SCOPE
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.
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14. DURATION
2 Once a case proceeds to trial, all of the information that was designated as
3 || confidential or maintained pursuant to this protective order becomes public and will
4 || be presumptively available to all members of the public, including the press, unless
5 || compelling reasons supported by specific factual findings to proceed otherwise are
6 || made to the trial judge in advance of the trial. See Kamakana v. City and County of
7 || Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
8 || showing for sealing documents produced in discovery from “compelling reasons”
9 || standard when merits-related documents are part of court record). Accordingly, the
n 10 || terms of this protective order do not extend beyond the commencement of the trial.
< 11
12)/5. DESIGNATING PROTECTED MATERIAL
> 13 5.1 Exercise of Restraint and Care in Designating Material for Protection.
s 14 || Each Party or Non-Party that designates information or items for protection under
15 || this Order must take care to limit any such designation to specific material that
16 || qualifies under the appropriate standards. The Designating Party must designate for
17 || protection only those parts of material, documents, items, or oral or written
18 || communications that qualify so that other portions of the material, documents,
19 || items, or communications for which protection is not warranted are not swept
20 || unjustifiably within the ambit of this Order.
21 Mass, indiscriminate, or routinized designations are prohibited. Designations
22 || that are shown to be clearly unjustified or that have been made for an improper
23 || purpose (e.g., to unnecessarily encumber the case development process or to impose
24 || unnecessary expenses and burdens on other parties) may expose the Designating
25 || 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
28 || promptly notify all other Parties that it is withdrawing the inapplicable designation.
l 5.2 Manner and Timing of Designations. Except as otherwise provided in
2 || this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
3 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
4 || under this Order must be clearly so designated before the material is disclosed or
5 || produced.
6 Designation in conformity with this Order requires:
7 (a) for information in documentary form (e.g., paper or electronic documents,
8 || but excluding transcripts of depositions or other pretrial or trial proceedings), that
9 || the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
n 10 || “CONFIDENTIAL legend”), to each page that contains protected material. If only a
2 11 || portion or portions of the material on a page qualifies for protection, the Producing
12 || Party also must clearly identify the protected portion(s) (e.g., by making appropriate
> 13 || markings in the margins).
14 A Party or Non-Party that makes original documents available for
15 || inspection need not designate them for protection until after the inspecting Party has
16 || indicated which documents it would like copied and produced. During the
17 || inspection and before the designation, all of the material made available for
18 || inspection will be deemed “CONFIDENTIAL.” After the inspecting Party has
19 || identified the documents it wants copied and produced, the Producing Party must
20 || determine which documents, or portions thereof, qualify for protection under this
21 || Order. Then, before producing the specified documents, the Producing Party must
22 || affix the “CONFIDENTIAL legend” to each page that contains Protected Material.
23 || If only a portion or portions of the material on a page qualifies for protection, the
24 || Producing Party also must clearly identify the protected portion(s) (e.g., by making
25 || appropriate markings in the margins).
26 (b) for testimony given in depositions that the Designating Party identify the
27 || Disclosure or Discovery Material on the record, before the close of the deposition all
28 || protected testimony.
l (c) for information produced in some form other than documentary and for
2 || any other tangible items, that the Producing Party affix in a prominent place on the
3 || exterior of the container or containers in which the information is stored the legend
4 ||““CONFIDENTIAL.” If only a portion or portions of the information warrants
5 || protection, the Producing Party, to the extent practicable, will identify the protected
6 || portion(s).
7 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
8 || failure to designate qualified information or items does not, standing alone, waive
9 || the Designating Party’s right to secure protection under this Order for such material.
n 10 || Upon timely correction of a designation, the Receiving Party must make reasonable
2 11 || efforts to assure that the material is treated in accordance with the provisions of this
12 || Order.
S13
14||6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
15 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
16 || designation of confidentiality at any time that is consistent with the Court’s
17 || Scheduling Order.
18 6.2 Meet and Confer. The Challenging Party will initiate the dispute
19 || resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1
20 || et seq.
21 6.3 The burden of persuasion in any such challenge proceeding will be on
22 || the Designating Party. Frivolous challenges, and those made for an improper
23 || purpose (e.g., to harass or impose unnecessary expenses and burdens on other
24 || parties) may expose the Challenging Party to sanctions. Unless the Designating
25 || Party has waived or withdrawn the confidentiality designation, all parties will
26 || continue to afford the material in question the level of protection to which it is
27 || entitled under the Producing Party’s designation until the Court rules on the
28 || challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
2 7.1 Basic Principles. A Receiving Party may use Protected Material that is
3 || disclosed or produced by another Party or by a Non-Party in connection with this
4 || Action only for prosecuting, defending, or attempting to settle this Action. Such
5 || Protected Material may be disclosed only to the categories of persons and under the
6 || conditions described in this Order. When the Action has been terminated, a
7 || Receiving Party must comply with the provisions of section 13 below (FINAL
8 || DISPOSITION).
9 Protected Material must be stored and maintained by a Receiving Party at a
n 10 || location and in a secure manner that ensures that access is limited to the persons
2 11 || authorized under this Order.
12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
> 13 || otherwise ordered by the court or permitted in writing by the Designating Party, a
s 14 || Receiving Party may disclose any information or item designated
15 || “CONFIDENTIAL” only to:
16 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
17 || well as employees of said Outside Counsel of Record to whom it is reasonably
18 || necessary to disclose the information for this Action;
19 (b) the officers, directors, and employees (including House Counsel) of
20 || the Receiving Party to whom disclosure is reasonably necessary for this Action;
21 (c) Experts (as defined in this Order) or expert consultants of the
22 || Receiving Party, whether or not retained to testify at any oral hearing, to whom
23 || disclosure is reasonably necessary for this Action and who have signed the
24 || “Acknowledgment and Agreement to Be Bound” (Exhibit A);
25 (d) the Court and its personnel;
26 (e) court reporters and their staff;
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l (f) professional jury or trial consultants, mock jurors, and Professional
2 || Vendors to whom disclosure is reasonably necessary for this Action and who have
3 || signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
4 (g) the author or recipient of a document containing the information or a
5 || custodian or other person who otherwise possessed or knew the information;
6 (h) during their depositions, witnesses ,and attorneys for witnesses, in the
7 || Action to whom disclosure is reasonably necessary provided: (1) the deposing party
§ || requests that the witness sign the form attached as Exhibit A hereto; and (2) they
9 || will not be permitted to keep any confidential information unless they sign the
10 || “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
2 11 || agreed by the Designating Party or ordered by the court. Pages of transcribed
12 || deposition testimony or exhibits to depositions that reveal Protected Material may
> 13 || be separately bound by the court reporter and may not be disclosed to anyone except
s 14 || as permitted under this Stipulated Protective Order; and
15 (1) any mediator or settlement officer, and their supporting personnel,
16 || mutually agreed upon by any of the parties engaged in settlement discussions.
18 |/8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
19 || IN OTHER LITIGATION
20 If a Party is served with a subpoena or a court order issued in other litigation
21 || that compels disclosure of any information or items designated in this Action as
22 “CONFIDENTIAL,” that Party must:
23 (a) promptly notify in writing the Designating Party. Such notification
24 || will include a copy of the subpoena or court order;
25 (b) promptly notify in writing the party who caused the subpoena or order
26 || to issue in the other litigation that some or all of the material covered by the
27 || subpoena or order is subject to this Protective Order. Such notification will include
28 ||a copy of this Stipulated Protective Order; and
l (c) cooperate with respect to all reasonable procedures sought to be
2 || pursued by the Designating Party whose Protected Material may be affected.
3 If the Designating Party timely seeks a protective order, the Party served with
4 || the subpoena or court order will not produce any information designated in this
5 ||action as “CONFIDENTIAL” before a determination by the court from which the
6 || subpoena or order issued, unless the Party has obtained the Designating Party’s
7 ||permission. The Designating Party will bear the burden and expense of seeking
8 || protection in that court of its confidential material and nothing in these provisions
9 || should be construed as authorizing or encouraging a Receiving Party in this Action
n 10 || to disobey a lawful directive from another court.
< 11
= 12419. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
> 13 || PRODUCED IN THIS LITIGATION
14 (a) The terms of this Order are applicable to information produced by a
= 15 || Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
16 || produced by Non-Parties in connection with this litigation 1s protected by the
17 || remedies and relief provided by this Order. Nothing in these provisions should be
18 || construed as prohibiting a Non-Party from seeking additional protections.
19 (b) In the event that a Party is required, by a valid discovery request, to
20 || produce a Non-Party’s confidential information in its possession, and the Party is
21 || subject to an agreement with the Non-Party not to produce the Non-Party’s
22 || confidential information, then the Party will:
23 (1) promptly notify in writing the Requesting Party and the Non-Party
24 || that some or all of the information requested is subject to a confidentiality
25 ||agreement with a Non-Party;
26 (2) promptly provide the Non-Party with a copy of the Stipulated
27 || Protective Order in this Action, the relevant discovery request(s), and a reasonably
28 || specific description of the information requested; and
l (3) make the information requested available for inspection by the
2 || Non-Party, if requested.
3 (c) If the Non-Party fails to seek a protective order from this court within
4 || 14 days of receiving the notice and accompanying information, the Receiving Party
5 || may produce the Non-Party’s confidential information responsive to the discovery
6 || request. If the Non-Party timely seeks a protective order, the Receiving Party will
7 || not produce any information in its possession or control that is subject to the
8 || confidentiality agreement with the Non-Party before a determination by the court.
9 || Absent a court order to the contrary, the Non-Party will bear the burden and expense
10 || of seeking protection in this court of its Protected Material.
< 11
— 12}/10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
> 13 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
s 14 || Protected Material to any person or in any circumstance not authorized under this
= 15 || Stipulated Protective Order, the Receiving Party must immediately (a) notify in
16 || writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
17 || to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
18 || persons to whom unauthorized disclosures were made of all the terms of this Order,
19 || and (d) request such person or persons to execute the “Acknowledgment and
20 || Agreement to Be Bound” that is attached hereto as Exhibit A.
21
22|}11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
23 || PROTECTED MATERIAL
24 When a Producing Party gives notice to Receiving Parties that certain
25 || inadvertently produced material is subject to a claim of privilege or other protection,
26 || the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
27 || Procedure 26(b)(5)(B). This provision is not intended to modify whatever
28 || procedure may be established in an e-discovery order that provides for production
1 || without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
2 ||(e), insofar as the parties reach an agreement on the effect of disclosure of a
3 || communication or information covered by the attorney-client privilege or work
4 || product protection, the parties may incorporate their agreement in the stipulated
5 || protective order submitted to the court.
6
7)}12. MISCELLANEOUS
8 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
9 || person to seek its modification by the Court in the future.
n 10 12.2 Right to Assert Other Objections. By stipulating to the entry of this
2 11 || Protective Order no Party waives any right it otherwise would have to object to
12 || disclosing or producing any information or item on any ground not addressed in this
> 13 || Stipulated Protective Order. Similarly, no Party waives any right to object on any
s 14 || ground to use in evidence of any of the material covered by this Protective Order.
15 12.3 Filing Protected Material. A Party that seeks to file under seal any
16 || Protected Material must comply with Civil Local Rule 79-5. Protected Material may
17 || only be filed under seal pursuant to a court order authorizing the sealing of the
18 || specific Protected Material at issue. If a Party's request to file Protected Material
19 || under seal is denied by the court, then the Receiving Party may file the information
20 in the public record unless otherwise instructed by the court.
21
22||13. FINAL DISPOSITION
23 After the final disposition of this Action, as defined in paragraph 4, within 60
24 || days of a written request by the Designating Party, each Receiving Party must return
25 || all Protected Material to the Producing Party or destroy such material. As used in
26 || this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
27 summaries, and any other format reproducing or capturing any of the Protected
28 || Material. Whether the Protected Material is returned or destroyed, the Receiving
1 || Party must submit a written certification to the Producing Party (and, if not the same
2 || person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
3 || (by category, where appropriate) all the Protected Material that was returned or
4 || destroyed and (2) affirms that the Receiving Party has not retained any copies,
5 || abstracts, compilations, summaries or any other format reproducing or capturing any
6 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to
7 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
8 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
9 || reports, attorney work product, and consultant and expert work product, even if such
10 || materials contain Protected Material. Any such archival copies that contain or
2 11 || constitute Protected Material remain subject to this Protective Order as set forth in
_12||Section 4 (DURATION).
S13
s 14)}14. Any willful violation of this Order may be punished by civil or criminal
= 15 || contempt proceedings, financial or evidentiary sanctions, reference to disciplinary
16 || authorities, or other appropriate action at the discretion of the Court.
17
18 |}FOR GOOD CAUSE SHOWN BY THE PARTIES’ STIPULATION, IT IS SO
|} ORDERED.
20
21 fu f
22 || DATED: September 22, 2023
23 HON. PEDRO V. CASTILLO
United States Magistrate Judge
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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 Case No. 2:22-cv-07960-ODW-PVC]. I agree to comply with and to
9 || be bound by all the terms of this Stipulated Protective Order and I understand and
n 10 || acknowledge that failure to so comply could expose me to sanctions and punishment
2 11 ||in the nature of contempt. I solemnly promise that I will not disclose in any manner
12 || any information or item that is subject to this Stipulated Protective Order to any
> 13 || person or entity except in strict compliance with the provisions of this Order.
s 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 [full
18 || name] of [full address and
19 || telephone number] as my California agent for service of process in connection with
20 || this action or any proceedings related to enforcement of this Stipulated Protective
21 || Order.
22 || Date:
23 || City and State where signed:
24
25 || Printed name:
26
27 || Signature:
28