even stipulated protective orders 20 require good cause showing
How later courts described this case
- even stipulated protective orders 20 require good cause showing
Written by the judges who cited it.
The opinion
1 WESTON & AGNESS LLP
Aaron C. Agness (State Bar No. 221943)
2 Karen D. Ruiz (State Bar No. 336254)
1960 East Grand Avenue, Suite 400
3 El Segundo, CA 90245
Telephone: (213) 596-8000
4 Facsimile: (213) 596-8039
E-mail: aagness@westonagnesslaw.com
5 kruiz@westonagnesslaw.com
6 Attorneys for Defendant
TRAVELERS COMMERCIAL INSURANCE COMPANY
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
GREGORY and LINDA MCDONALD, ) Case No. 2:22-cv-00781-MWF (RAOx)
11
)
12 Plaintiff, )
) STIPULATED PROTECTIVE
13
) ORDER
14 v. )
)
15
)
16 TRAVELERS COMMERCIAL )
INSURANCE COMPANY, a )
17
Connecticut corporation; LEACH ) Action Filed: December 30, 2021
18 DESIGN-BUILD, LP, and DOES 1 ) Trial Date: June 18, 2024
through 10, )
19
)
20 Defendants. )
)
21
)
22 )
23
24 1. A. PURPOSES AND LIMITATIONS
25 Discovery in this action is likely to involve production of confidential,
26 proprietary or private information for which special protection from public
27 disclosure and from use for any purpose other than prosecuting this litigation may
1 enter the following Stipulated Protective Order. The parties acknowledge that this
2 Order does not confer blanket protections on all disclosures or responses to
3 discovery and that the protection it affords from public disclosure and use extends
4 only to the limited information or items that are entitled to confidential treatment
5 under the applicable legal principles.
6 B. GOOD CAUSE STATEMENT
7 This action is likely to involve trade secrets, confidential personal, business,
8 proprietary information and other valuable research, development, commercial,
9 financial, technical and/or proprietary information for which special protection from
10 public disclosure and from use for any purpose other than prosecution of this action
11 is warranted. This case involves claims for breach of contract, breach of the implied
12 covenant of good faith and fair dealing, and financial elder abuse filed by Plaintiffs
13 Gregory and Linda McDonald (“Plaintiffs”) against Defendant Travelers
14 Commercial Insurance Company (“Travelers”) pertaining to an insurance claim
15 made by Plaintiffs under an insurance policy issued by Travelers following damage
16 caused to a Malibu home by the 2018 Woolsey Fire. Parties and third parties (both
17 individual and corporate) may possess potentially discoverable information. Such
18 confidential and proprietary materials and information consist of, among other
19 things, confidential business or financial information, information regarding
20 confidential business practices, or other confidential research, development, or
21 commercial information (including information implicating privacy rights of third
22 parties), information otherwise generally unavailable to the public, or which may be
23 privileged or otherwise protected from disclosure under state or federal statutes,
24 court rules, case decisions, or common law. Accordingly, to expedite the flow of
25 information, to facilitate the prompt resolution of disputes over confidentiality of
26 discovery materials, to adequately protect information the parties are entitled to keep
27 confidential, to ensure that the parties are permitted reasonable necessary uses of
1 at the end of the litigation, and serve the ends of justice, a protective order for such
2 information is justified in this matter. It is the intent of the parties that information
3 will not be designated as confidential for tactical reasons and that nothing be so
4 designated without a good faith belief that it has been maintained in a confidential,
5 non-public manner, and there is good cause why it should not be part of the public
6 record of this case.
7 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
8 SEAL
9 The parties further acknowledge, as set forth in Section 12.3, below, that this
10 Stipulated Protective Order does not entitle them to file confidential information
11 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
12 and the standards that will be applied when a party seeks permission from the court
13 to file material under seal.
14 There is a strong presumption that the public has a right of access to judicial
15 proceedings and records in civil cases. In connection with non-dispositive motions,
16 good cause must be shown to support a filing under seal. See Kamakana v. City and
17 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors
18 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,
19 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
20 require good cause showing), and a specific showing of good cause or compelling
21 reasons with proper evidentiary support and legal justification, must be made with
22 respect to Protected Material that a party seeks to file under seal. The parties’ mere
23 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
24 without the submission of competent evidence by declaration, establishing that the
25 material sought to be filed under seal qualifies as confidential, privileged, or
26 otherwise protectable—constitute good cause.
27 Further, if a party requests sealing related to a dispositive motion or trial, then
1 relief sought shall be narrowly tailored to serve the specific interest to be protected.
2 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
3 each item or type of information, document, or thing sought to be filed or introduced
4 under seal in connection with a dispositive motion or trial, the party seeking
5 protection must articulate compelling reasons, supported by specific facts and legal
6 justification, for the requested sealing order. Again, competent evidence supporting
7 the application to file documents under seal must be provided by declaration.
8 Any document that is not confidential, privileged, or otherwise protectable in
9 its entirety will not be filed under seal if the confidential portions can be redacted.
10 If documents can be redacted, then a redacted version for public viewing, omitting
11 only the confidential, privileged, or otherwise protectable portions of the document
12 shall be filed. Any application that seeks to file documents under seal in their
13 entirety should include an explanation of why redaction is not feasible.
14 2. DEFINITIONS
15 2.1 Action: this pending federal lawsuit—Case No. 2:22-cv-00781-MWF
16 (RAOx).
17 2.2 Challenging Party: a Party or Non-Party that challenges the
18 designation of information or items under this Order.
19 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
20 how it is generated, stored or maintained) or tangible things that qualify for
21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
22 the Good Cause Statement.
23 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
24 their support staff).
25 2.5 Designating Party: a Party or Non-Party that designates information or
26 items that it produces in disclosures or in responses to discovery as
27 “CONFIDENTIAL.”
1 of the medium or manner in which it is generated, stored, or maintained (including,
2 among other things, testimony, transcripts, and tangible things) that are produced or
3 generated in disclosures or responses to discovery in this matter.
4 2.7 Expert: a person with specialized knowledge or experience in a matter
5 pertinent to the litigation who has been retained by a Party or its counsel to serve as
6 an expert witness or as a consultant in this Action.
7 2.8 House Counsel: attorneys who are employees of a party to this Action.
8 House Counsel does not include Outside Counsel of Record or any other outside
9 counsel.
10 2.9 Non-Party: any natural person, partnership, corporation, association or
11 other legal entity not named as a Party to this action.
12 2.10 Outside Counsel of Record: attorneys who are not employees of a
13 party to this Action but are retained to represent or advise a party to this Action and
14 have appeared in this Action on behalf of that party or are affiliated with a law firm
15 that has appeared on behalf of that party, and includes support staff.
16 2.11 Party: any party to this Action, including all of its officers, directors,
17 employees, consultants, retained experts, and Outside Counsel of Record (and their
18 support staffs).
19 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
20 Discovery Material in this Action.
21 2.13 Professional Vendors: persons or entities that provide litigation
22 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
23 demonstrations, and organizing, storing, or retrieving data in any form or medium)
24 and their employees and subcontractors.
25 2.14 Protected Material: any Disclosure or Discovery Material that is
26 designated as “CONFIDENTIAL.”
27 2.15 Receiving Party: a Party that receives Disclosure or Discovery
1 3. SCOPE
2 The protections conferred by this Stipulation and Order cover not only
3 Protected Material (as defined above), but also (1) any information copied or
4 extracted from Protected Material; (2) all copies, excerpts, summaries, or
5 compilations of Protected Material; and (3) any testimony, conversations, or
6 presentations by Parties or their Counsel that might reveal Protected Material.
7 Any use of Protected Material at trial shall be governed by the orders of the
8 trial judge. This Order does not govern the use of Protected Material at trial.
9 4. DURATION
10 Even after final disposition of this litigation, the confidentiality obligations
11 imposed by this Order shall remain in effect until a Designating Party agrees
12 otherwise in writing or a court order otherwise directs. Final disposition shall be
13 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
14 or without prejudice; and (2) final judgment herein after the completion and
15 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
16 including the time limits for filing any motions or applications for extension of time
17 pursuant to applicable law.
18 5. DESIGNATING PROTECTED MATERIAL
19 5.1 Exercise of Restraint and Care in Designating Material for Protection.
20 Each Party or Non-Party that designates information or items for protection
21 under this Order must take care to limit any such designation to specific material
22 that qualifies under the appropriate standards. The Designating Party must
23 designate for protection only those parts of material, documents, items or oral or
24 written communications that qualify so that other portions of the material,
25 documents, items or communications for which protection is not warranted are not
26 swept unjustifiably within the ambit of this Order.
27 Mass, indiscriminate or routinized designations are prohibited. Designations
1 purpose (e.g., to unnecessarily encumber the case development process or to impose
2 unnecessary expenses and burdens on other parties) may expose the Designating
3 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
9 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
10 under this Order must be clearly so designated before the material is disclosed or
11 produced.
12 Designation in conformity with this Order requires:
13 (a) for information in documentary form (e.g., paper or electronic
14 documents, but excluding transcripts of depositions or other pretrial or trial
15 proceedings), that the Producing Party affix at a minimum, the legend
16 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
17 contains protected material. If only a portion of the material on a page qualifies for
18 protection, the Producing Party also must clearly identify the protected portion(s)
19 (e.g., by making appropriate markings in the margins).
20 A Party or Non-Party that makes original documents available for inspection
21 need not designate them for protection until after the inspecting Party has indicated
22 which documents it would like copied and produced. During the inspection and
23 before the designation, all of the material made available for inspection shall be
24 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
25 documents it wants copied and produced, the Producing Party must determine which
26 documents, or portions thereof, qualify for protection under this Order. Then,
27 before producing the specified documents, the Producing Party must affix the
1 portion of the material on a page qualifies for protection, the Producing Party also
2 must clearly identify the protected portion(s) (e.g., by making appropriate markings
3 in the margins).
4 (b) for testimony given in depositions that the Designating Party identifies
5 the Disclosure or Discovery Material on the record, before the close of the
6 deposition all protected testimony.
7 (c) for information produced in some form other than documentary and
8 for any other tangible items, that the Producing Party affix in a prominent place on
9 the exterior of the container or containers in which the information is stored the
10 legend “CONFIDENTIAL.” If only a portion or portions of the information
11 warrants protection, the Producing Party, to the extent practicable, shall identify the
12 protected portion(s).
13 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
14 failure to designate qualified information or items does not, standing alone, waive
15 the Designating Party’s right to secure protection under this Order for such material.
16 Upon timely correction of a designation, the Receiving Party must make reasonable
17 efforts to assure that the material is treated in accordance with the provisions of this
18 Order.
19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
21 designation of confidentiality at any time that is consistent with the Court’s
22 Scheduling Order.
23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
24 resolution process under Local Rule 37.1 et seq.
25 6.3 The burden of persuasion in any such challenge proceeding shall be on
26 the Designating Party. Frivolous challenges, and those made for an improper
27 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
1 Party has waived or withdrawn the confidentiality designation, all parties shall
2 continue to afford the material in question the level of protection to which it is
3 entitled under the Producing Party’s designation until the Court rules on the
4 challenge.
5 7. ACCESS TO AND USE OF PROTECTED MATERIAL
6 7.1 Basic Principles. A Receiving Party may use Protected Material that is
7 disclosed or produced by another Party or by a Non-Party in connection with this
8 Action only for prosecuting, defending or attempting to settle this Action. Such
9 Protected Material may be disclosed only to the categories of persons and under the
10 conditions described in this Order. When the Action has been terminated, a
11 Receiving Party must comply with the provisions of section 13 below (FINAL
12 DISPOSITION).
13 Protected Material must be stored and maintained by a Receiving Party at a
14 location and in a secure manner that ensures that access is limited to the persons
15 authorized under this Order.
16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
17 otherwise ordered by the court or permitted in writing by the Designating Party, a
18 Receiving Party may disclose any information or item designated
19 “CONFIDENTIAL” only to:
20 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
21 well as employees of said Outside Counsel of Record to whom it is reasonably
22 necessary to disclose the information for this Action;
23 (b) the officers, directors, and employees (including House Counsel) of
24 the Receiving Party to whom disclosure is reasonably necessary for this Action;
25 (c) Experts (as defined in this Order) of the Receiving Party to whom
26 disclosure is reasonably necessary for this Action and who have signed the
27 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
1 (e) court reporters and their staff;
2 (f) professional jury or trial consultants, mock jurors, and Professional
3 Vendors to whom disclosure is reasonably necessary for this Action and who have
4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
5 (g) the author or recipient of a document containing the information or a
6 custodian or other person who otherwise possessed or knew the information;
7 (h) during their depositions, witnesses, and attorneys for witnesses, in the
8 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
9 requests that the witness sign the form attached as Exhibit A hereto; and (2) they
10 will not be permitted to keep any confidential information unless they sign the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
12 agreed by the Designating Party or ordered by the court. Pages of transcribed
13 deposition testimony or exhibits to depositions that reveal Protected Material may
14 be separately bound by the court reporter and may not be disclosed to anyone except
15 as permitted under this Stipulated Protective Order; and
16 (i) any mediator or settlement officer, and their supporting personnel,
17 mutually agreed upon by any of the parties engaged in settlement discussions.
18 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
19 PRODUCED 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 shall 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 shall include
1 (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 shall 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 shall 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
10 to disobey a lawful directive from another court.
11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
12 PRODUCED IN THIS LITIGATION
13 (a) The terms of this Order are applicable to information produced by a
14 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
15 produced by Non-Parties in connection with this litigation is protected by the
16 remedies and relief provided by this Order. Nothing in these provisions should be
17 construed as prohibiting a Non-Party from seeking additional protections.
18 (b) In the event that a Party is required, by a valid discovery request, to
19 produce a Non-Party’s confidential information in its possession, and the Party is
20 subject to an agreement with the Non-Party not to produce the Non-Party’s
21 confidential information, then the Party shall:
22 (1) promptly notify in writing the Requesting Party and the Non-Party
23 that some or all of the information requested is subject to a confidentiality
24 agreement with a Non-Party;
25 (2) promptly provide the Non-Party with a copy of the Stipulated
26 Protective Order in this Action, the relevant discovery request(s), and a reasonably
27 specific description of the information requested; and
1 Non-Party, if requested.
2 (c) If the Non-Party fails to seek a protective order from this court within
3 14 days of receiving the notice and accompanying information, the Receiving Party
4 may produce the Non-Party’s confidential information responsive to the discovery
5 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
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 Absent a court order to the contrary, the Non-Party shall bear the burden and
9 expense of seeking protection in this court of its Protected Material.
10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
12 Protected Material to any person or in any circumstance not authorized under this
13 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
14 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
15 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
16 persons to whom unauthorized disclosures were made of all the terms of this Order,
17 and (d) request such person or persons to execute the “Acknowledgment and
18 Agreement to Be Bound” that is attached hereto as Exhibit A.
19 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
20 PROTECTED MATERIAL
21 When a Producing Party gives notice to Receiving Parties that certain
22 inadvertently produced material is subject to a claim of privilege or other protection,
23 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
24 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
25 procedure may be established in an e-discovery order that provides for production
26 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
27 (e), insofar as the parties reach an agreement on the effect of disclosure of a
1 product protection, the parties may incorporate their agreement in the stipulated
2 protective order submitted to the court.
3 12. MISCELLANEOUS
4 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
5 person to seek its modification by the Court in the future.
6 12.2 Right to Assert Other Objections. By stipulating to the entry of this
7 Protective Order, no Party waives any right it otherwise would have to object to
8 disclosing or producing any information or item on any ground not addressed in this
9 Stipulated Protective Order. Similarly, no Party waives any right to object on any
10 ground to use in evidence of any of the material covered by this Protective Order.
11 12.3 Filing Protected Material. A Party that seeks to file under seal any
12 Protected Material must comply with Local Civil Rule 79-5. Protected Material
13 may only be filed under seal pursuant to a court order authorizing the sealing of the
14 specific Protected Material at issue. If a Party’s request to file Protected Material
15 under seal is denied by the court, then the Receiving Party may file the information
16 in the public record unless otherwise instructed by the court.
17 13. FINAL DISPOSITION
18 After the final disposition of this Action, as defined in paragraph 4, within 60
19 days of a written request by the Designating Party, each Receiving Party must return
20 all Protected Material to the Producing Party or destroy such material. As used in
21 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
22 summaries, and any other format reproducing or capturing any of the Protected
23 Material. Whether the Protected Material is returned or destroyed, the Receiving
24 Party must submit a written certification to the Producing Party (and, if not the same
25 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
26 (by category, where appropriate) all the Protected Material that was returned or
27 destroyed and (2) affirms that the Receiving Party has not retained any copies,
1 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
2 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
3 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
4 reports, attorney work product, and consultant and expert work product, even if such
5 materials contain Protected Material. Any such archival copies that contain or
6 constitute Protected Material remain subject to this Protective Order as set forth in
7 Section 4 (DURATION).
8 14. VIOLATION
9 Any violation of this Order may be punished by appropriate measures
10 including, without limitation, contempt proceedings and/or monetary sanctions.
11 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
12
Dated: November 27, 2023
13 s/ Samuel L. Bruchey
William M. Shernoff
14 Samuel L. Bruchey
Attorneys for Plaintiffs
15 GREGORY and LINDA
MCDONALD
16
Dated: November 27, 2023
17 s/ Aaron C. Agness
Aaron C. Agness
18 Karen D. Ruiz
Attorneys for Defendant
19 TRAVELERS COMMERCIAL
INSURANCE COMPANY
20
21 Attestation Pursuant to L.R. 5-4.3.4(a)(2)(i)
22 I, Aaron C. Agness, attest that all other signatories listed, and on whose behalf
23 this filing is submitted, concur in the filing’s content and have authorized the filing
24 of this document with the use of their electronic signature.
25
s/ Aaron C. Agness
26 Aaron C. Agness
27
1 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
2
3 || DATED: January 17, 2024
Rayeeen , QL
6 || United States Magisirate Judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [print or type full name], of
5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California
8 on [date] in the case of Gregory and Linda McDonald v. Travelers Commercial
9 Insurance Company, et al., Case 2:22-cv-00781-MWF (RAOx). I agree to comply
10 with and to be bound by all the terms of this Stipulated Protective Order and I
11 understand and acknowledge that failure to so comply could expose me to sanctions
12 and punishment in the nature of contempt. I solemnly promise that I will not
13 disclose in any manner any information or item that is subject to this Stipulated
14 Protective Order to any person or entity except in strict compliance with the
15 provisions of this Order.
16 I further agree to submit to the jurisdiction of the United States District Court for the
17 Central District of California for enforcing the terms of this Stipulated Protective
18 Order, even if such enforcement proceedings occur after termination of this action.
19 I hereby appoint __________________________ [print or type full name] of
20 _______________________________________ [print or type full address and
21 telephone number] as my California agent for service of process in connection with
22 this action or any proceedings related to enforcement of this Stipulated Protective
23 Order.
24 Date: ______________________________________
25 City and State where sworn and signed: _________________________________
26 Printed name: _______________________________
27