even stipulated protective orders 9 || require good cause showing
How later courts described this case
- even stipulated protective orders 9 || require good cause showing
Written by the judges who cited it.
The opinion
| Stephen M. Doniger (SBN 179314)
2 || stephen@donigerlawfirm.com
Benjamin F. Tookey (SBN 330508)
3 btookey@donigerlawfirm.com
4 || DONIGER / BURROUGHS
603 Rose Avenue
> || Venice, California 90291
6 || Telephone: (310) 590-1820
4 Attorneys for Plaintiff
8
9 UNITED STATES DISTRICT COURT
0 CENTRAL DISTRICT OF CALIFORNIA
1] CREATIVE PHOTOGRAPHERS,
INC., Case No. 2:23-cv-05419-JFW-RAO
Plaintiff,
13 STIPULATED PROTECTIVE
4 V. ORDER!
15 LINE FINANCIAL, PBC; et al.,
Defendant.
16
17
18 | 1. A. PURPOSES AND LIMITATIONS
19 Discovery in this action is likely to involve production of confidential,
20 || proprietary or private information for which special protection from public
21 || disclosure and from use for any purpose other than prosecuting this litigation may
22 || be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
23 || enter the following Stipulated Protective Order. The parties acknowledge that this
24 || Order does not confer blanket protections on all disclosures or responses to
25 || discovery and that the protection it affords from public disclosure and use extends
26
27
9g || ' This Stipulated Protective Order is substantially based on the model protective
order provided under Magistrate Judge Rozella A. Oliver’s Procedures.
1 || only to the limited information or items that are entitled to confidential treatment
2 || under the applicable legal principles.
3 B. GOOD CAUSE STATEMENT
4 This action ts likely to involve customer and pricing lists and other valuable
5 || commercial, financial, technical and/or proprietary information for which special
6 || protection from public disclosure and from use for any purpose other than
7 || prosecution of this action is warranted. Such confidential and proprietary materials
8 || and information consist of, among other things, confidential business or financial
9 || information, information regarding confidential business practices, or other
10 || confidential commercial information (including information implicating privacy
11 || rights of third parties), information otherwise generally unavailable to the public, or
12 || which may be privileged or otherwise protected from disclosure under state or
13 || federal statutes, court rules, case decisions, or common law. Accordingly, to
14 || expedite the flow of information, to facilitate the prompt resolution of disputes over
15 || confidentiality of discovery materials, to adequately protect information the parties
16 || are entitled to keep confidential, to ensure that the parties are permitted reasonable
17 || necessary uses of such material in preparation for and in the conduct of trial, to
18 || address their handling at the end of the litigation, and serve the ends of justice, a
19 || protective order for such information is justified in this matter. It is the intent of the
20 || parties that information will not be designated as confidential for tactical reasons
21 || and that nothing be so designated without a good faith belief that it has been
22 || maintained in a confidential, non-public manner, and there is good cause why it
23 || should not be part of the public record of this case.
24 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
25 The parties further acknowledge, as set forth in Section 12.3, below, that this
26 || Stipulated Protective Order does not entitle them to file confidential information
27 || under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
28
1 || and the standards that will be applied when a party seeks permission from the court
2 || to file material under seal.
3 There is a strong presumption that the public has a right of access to judicial
4 || proceedings and records in civil cases. In connection with non-dispositive motions,
5 || good cause must be shown to support a filing under seal. See Kamakana vy. City and
6 || County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors
7 || Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,
8 || Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
9 || require good cause showing), and a specific showing of good cause or compelling
10 || reasons with proper evidentiary support and legal justification, must be made with
11 || respect to Protected Material that a party seeks to file under seal. The parties’ mere
12 || designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
13 || without the submission of competent evidence by declaration, establishing that the
14 || material sought to be filed under seal qualifies as confidential, privileged, or
15 || otherwise protectable—constitute good cause.
16 Further, if a party requests sealing related to a dispositive motion or trial, then
|| compelling reasons, not only good cause, for the sealing must be shown, and the
18 || relief sought shall be narrowly tailored to serve the specific interest to be protected.
19 || See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
20 || each item or type of information, document, or thing sought to be filed or introduced
21 || under seal in connection with a dispositive motion or trial, the party seeking
22 || protection must articulate compelling reasons, supported by specific facts and legal
23 || justification, for the requested sealing order. Again, competent evidence supporting
24 || the application to file documents under seal must be provided by declaration.
25 Any document that is not confidential, privileged, or otherwise protectable in
26 || its entirety will not be filed under seal if the confidential portions can be redacted.
27 || If documents can be redacted, then a redacted version for public viewing, omitting
28 || only the confidential, privileged, or otherwise protectable portions of the document
1 || shall be filed. Any application that seeks to file documents under seal in their
2 || entirety should include an explanation of why redaction 1s not feasible.
3 || 2. DEFINITIONS
4 2.1 Action: this pending federal lawsuit.
5 2.2 Challenging Party: a Party or Non-Party that challenges the
6 || designation of information or items under this Order.
7 2.3. “CONFIDENTIAL” Information or Items: information (regardless of
8 || how it is generated, stored or maintained) or tangible things that qualify for
9 || protection under Federal Rule of Civil Procedure 26(c), and as specified above in
10 || the Good Cause Statement.
11 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
12 || their support staff).
13 2.5 Designating Party: a Party or Non-Party that designates information or
14 || items that it produces in disclosures or in responses to discovery as
15 || “CONFIDENTIAL.”
16 2.6 Disclosure or Discovery Material: all items or information, regardless
17 || of the medium or manner in which it is generated, stored, or maintained (including,
18 || among other things, testimony, transcripts, and tangible things) that are produced or
19 || generated in disclosures or responses to discovery in this matter.
20 2.7 Expert: a person with specialized knowledge or experience in a matter
21 || pertinent to the litigation who has been retained by a Party or its counsel to serve as
22 || an expert witness or as a consultant in this Action.
23 2.8 House Counsel: attorneys who are employees of a party to this Action.
24 || House Counsel does not include Outside Counsel of Record or any other outside
25 || counsel.
26 2.9 Non-Party: any natural person, partnership, corporation, association or
27 || other legal entity not named as a Party to this action.
28 2.10 Qutside Counsel of Record: attorneys who are not employees of a
1 || party to this Action but are retained to represent or advise a party to this Action and
2 || have appeared in this Action on behalf of that party or are affiliated with a law firm
3 || that has appeared on behalf of that party, and includes support staff.
4 2.11 Party: any party to this Action, including all of its officers, directors,
5 || employees, consultants, retained experts, and Outside Counsel of Record (and their
6 || support staffs).
7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
8 || Discovery Material in this Action.
9 2.13 Professional Vendors: persons or entities that provide litigation
10 || support services (e.g., photocopying, videotaping, translating, preparing exhibits or
11 || demonstrations, and organizing, storing, or retrieving data in any form or medium)
12 || and their employees and subcontractors.
13 2.14 Protected Material: any Disclosure or Discovery Material that is
14 || designated as “CONFIDENTIAL.”
15 2.15 Receiving Party: a Party that receives Disclosure or Discovery
16 || Material from a Producing Party.
17 || 3. SCOPE
18 The protections conferred by this Stipulation and Order cover not only
19 || Protected Material (as defined above), but also (1) any information copied or
20 || extracted from Protected Material; (2) all copies, excerpts, summaries, or
21 || compilations of Protected Material; and (3) any testimony, conversations, or
22 || presentations by Parties or their Counsel that might reveal Protected Material.
23 Any use of Protected Material at trial shall be governed by the orders of the
24 || trial judge. This Order does not govern the use of Protected Material at trial.
25 || 4. DURATION
26 Once a case proceeds to trial, information that was designated as
27 || CONFIDENTIAL or maintained pursuant to this protective order used or introduced
28 || as an exhibit at trial becomes public and will be presumptively available to all
1 || members of the public, including the press, unless compelling reasons supported by
2 || specific factual findings to proceed otherwise are made to the trial judge in advance
3 || of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
4 || showing for sealing documents produced in discovery from “compelling reasons”
5 || standard when merits-related documents are part of court record). Accordingly, the
6 || terms of this protective order do not extend beyond the commencement of the trial.
7 5. DESIGNATING PROTECTED MATERIAL
8 5.1 Exercise of Restraint and Care in Designating Material for Protection.
9 || Each Party or Non-Party that designates information or items for protection under
10 || this Order must take care to limit any such designation to specific material that
11 || qualifies under the appropriate standards. The Designating Party must designate for
12 || protection only those parts of material, documents, items or oral or written
|} communications that qualify so that other portions of the material, documents, items
14 || or communications for which protection is not warranted are not swept unjustifiably
15 || within the ambit of this Order.
16 Mass, indiscriminate or routinized designations are prohibited. Designations
17 || that are shown to be clearly unjustified or that have been made for an improper
18 || purpose (e.g., to unnecessarily encumber the case development process or to impose
19 || unnecessary expenses and burdens on other parties) may expose the Designating
20 || Party to sanctions.
21 If it comes to a Designating Party’s attention that information or items that it
22 || designated for protection do not qualify for protection, that Designating Party must
23 || promptly notify all other Parties that it is withdrawing the inapplicable designation.
24 5.2 Manner and Timing of Designations. Except as otherwise provided in
25 || this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
26 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
27 || under this Order must be clearly so designated before the material is disclosed or
28 || produced.
1 Designation in conformity with this Order requires:
2 (a) for information in documentary form (e.g., paper or electronic
3 || documents, but excluding transcripts of depositions or other pretrial or trial
4 || proceedings), that the Producing Party affix at a minimum, the legend
5 || “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
6 || contains protected material. If only a portion of the material on a page qualifies for
7 || protection, the Producing Party also must clearly identify the protected portion(s)
8 || (e.g., by making appropriate markings in the margins).
9 A Party or Non-Party that makes original documents available for inspection
10 || need not designate them for protection until after the inspecting Party has indicated
11 || which documents it would like copied and produced. During the inspection and
12 || before the designation, all of the material made available for inspection shall be
13. || deemed “CONFIDENTIAL.” After the inspecting Party has identified the
14 || documents it wants copied and produced, the Producing Party must determine which
15 || documents, or portions thereof, qualify for protection under this Order. Then,
16 || before producing the specified documents, the Producing Party must affix the
17 || “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
18 || portion of the material on a page qualifies for protection, the Producing Party also
19 || must clearly identify the protected portion(s) (e.g., by making appropriate markings
20 || in the margins).
21 (b) for testimony given in depositions that the Designating Party identifies
22 || the Disclosure or Discovery Material on the record, before the close of the
23 || deposition all protected testimony.
24 (c) for information produced in some form other than documentary and
25 || for any other tangible items, that the Producing Party affix in a prominent place on
26 || the exterior of the container or containers in which the information is stored the
27 || legend “CONFIDENTIAL.” If only a portion or portions of the information
28 || warrants protection, the Producing Party, to the extent practicable, shall identify the
1 || protected portion(s).
2 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
3 || failure to designate qualified information or items does not, standing alone, waive
4 || the Designating Party’s right to secure protection under this Order for such material.
5 || Upon timely correction of a designation, the Receiving Party must make reasonable
6 || efforts to assure that the material is treated in accordance with the provisions of this
7 || Order.
8 || 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
9 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
10 || designation of confidentiality at any time that is consistent with the Court’s
11 || Scheduling Order.
12 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
13 || resolution process under Local Rule 37.1 et seq.
14 6.3. The burden of persuasion in any such challenge proceeding shall be on
15 || the Designating Party. Frivolous challenges, and those made for an improper
16 || purpose (e.g., to harass or impose unnecessary expenses and burdens on other
17 || parties) may expose the Challenging Party to sanctions. Unless the Designating
18 || Party has waived or withdrawn the confidentiality designation, all parties shall
19 || continue to afford the material in question the level of protection to which it is
20 || entitled under the Producing Party’s designation until the Court rules on the
21 || challenge.
22 || 7. ACCESS TO AND USE OF PROTECTED MATERIAL
23 7.1 Basic Principles. A Receiving Party may use Protected Material that is
24 || disclosed or produced by another Party or by a Non-Party in connection with this
25 || Action only for prosecuting, defending or attempting to settle this Action. Such
26 || Protected Material may be disclosed only to the categories of persons and under the
27 || conditions described in this Order. When the Action has been terminated, a
28 || Receiving Party must comply with the provisions of section 13 below (FINAL
1 || DISPOSITION).
2 Protected Material must be stored and maintained by a Receiving Party at a
3 || location and in a secure manner that ensures that access 1s limited to the persons
4 || authorized under this Order.
5 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
6 || otherwise ordered by the court or permitted in writing by the Designating Party, a
7 || Receiving Party may disclose any information or item designated
8 || “CONFIDENTIAL” only to:
9 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
10 || well as employees of said Outside Counsel of Record to whom it is reasonably
11 || necessary to disclose the information for this Action;
12 (b) the officers, directors, and employees (including House Counsel) of
13 || the Receiving Party to whom disclosure is reasonably necessary for this Action;
14 (c) Experts (as defined in this Order) of the Receiving Party to whom
15 || disclosure is reasonably necessary for this Action and who have signed the
16 || “Acknowledgment and Agreement to Be Bound” (Exhibit A);
17 (d) the court and its personnel;
18 (e) court reporters and their staff;
19 (f) professional jury or trial consultants, mock jurors, and Professional
20 || Vendors to whom disclosure is reasonably necessary for this Action and who have
21 || signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
22 (g) the author or recipient of a document containing the information or a
23 || custodian or other person who otherwise possessed or knew the information;
24 (h) during their depositions, witnesses, and attorneys for witnesses, in the
25 || Action to whom disclosure is reasonably necessary provided: (1) the deposing party
26 || requests that the witness sign the form attached as Exhibit A hereto; and (2) they
27 || will not be permitted to keep any confidential information unless they sign the
28 || “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
1 || agreed by the Designating Party or ordered by the court. Pages of transcribed
2 || deposition testimony or exhibits to depositions that reveal Protected Material may
3 || be separately bound by the court reporter and may not be disclosed to anyone except
4 || as permitted under this Stipulated Protective Order; and
5 (1) any mediator or settlement officer, and their supporting personnel,
6 || mutually agreed upon by any of the parties engaged in settlement discussions.
7 || 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
8 IN OTHER LITIGATION
9 If a Party is served with a subpoena or a court order issued in other litigation
10 || that compels disclosure of any information or items designated in this Action as
11 || “CONFIDENTIAL,” that Party must:
12 (a) promptly notify in writing the Designating Party. Such notification
13 || shall include a copy of the subpoena or court order;
14 (b) promptly notify in writing the party who caused the subpoena or order
15 || to issue in the other litigation that some or all of the material covered by the
16 || subpoena or order is subject to this Protective Order. Such notification shall include
17 || acopy of this Stipulated Protective Order; and
18 (c) cooperate with respect to all reasonable procedures sought to be
19 || pursued by the Designating Party whose Protected Material may be affected.
20 If the Designating Party timely seeks a protective order, the Party served with
21 || the subpoena or court order shall not produce any information designated in this
22 || action as “CONFIDENTIAL” before a determination by the court from which the
23 || subpoena or order issued, unless the Party has obtained the Designating Party’s
24 || permission. The Designating Party shall bear the burden and expense of seeking
25 || protection in that court of its confidential material and nothing in these provisions
26 || should be construed as authorizing or encouraging a Receiving Party in this Action
27 || to disobey a lawful directive from another court.
28 || 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
1 PRODUCED IN THIS LITIGATION
2 (a) The terms of this Order are applicable to information produced by a
3 || Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
4 || produced by Non-Parties in connection with this litigation is protected by the
5 || remedies and relief provided by this Order. Nothing in these provisions should be
6 || construed as prohibiting a Non-Party from seeking additional protections.
7 (b) In the event that a Party is required, by a valid discovery request, to
8 || produce a Non-Party’s confidential information in its possession, and the Party is
9 || subject to an agreement with the Non-Party not to produce the Non-Party’s
10 || confidential information, then the Party shall:
11 (1) promptly notify in writing the Requesting Party and the Non-Party
12 || that some or all of the information requested is subject to a confidentiality
13 || agreement with a Non-Party;
14 (2) promptly provide the Non-Party with a copy of the Stipulated
15 || Protective Order in this Action, the relevant discovery request(s), and a reasonably
16 || specific description of the information requested; and
17 (3) make the information requested available for inspection by the
18 || Non-Party, if requested.
19 (c) If the Non-Party fails to seek a protective order from this court within
20 || 14 days of receiving the notice and accompanying information, the Receiving Party
21 || may produce the Non-Party’s confidential information responsive to the discovery
22 || request. If the Non-Party timely seeks a protective order, the Receiving Party shall
23 || not produce any information in its possession or control that is subject to the
24 || confidentiality agreement with the Non-Party before a determination by the court.
25 || Absent a court order to the contrary, the Non-Party shall bear the burden and
26 || expense of seeking protection in this court of its Protected Material.
27 || 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
28 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
1 || Protected Material to any person or in any circumstance not authorized under this
2 || Stipulated Protective Order, the Receiving Party must immediately (a) notify in
3 || writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
4 || to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
5 || persons to whom unauthorized disclosures were made of all the terms of this Order,
6 || and (d) request such person or persons to execute the “Acknowledgment and
7 || Agreement to Be Bound” that is attached hereto as Exhibit A.
8 |} 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
9 PROTECTED MATERIAL
10 When a Producing Party gives notice to Receiving Parties that certain
11 || inadvertently produced material is subject to a claim of privilege or other protection,
12 || the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
13 || Procedure 26(b)(5)(B). This provision is not intended to modify whatever
14 || procedure may be established in an e-discovery order that provides for production
15 || without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
16 || (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
18 || product protection, the parties may incorporate their agreement in the stipulated
19 || protective order submitted to the court.
20 || 12. MISCELLANEOUS
21 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
22 || 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 this
26 || Stipulated Protective Order. Similarly, no Party waives any right to object on any
27 || ground to use in evidence of any of the material covered by this Protective Order.
28 12.3 Filing Protected Material. A Party that seeks to file under seal any
1 || Protected Material must comply with Local Civil Rule 79-5. Protected Material
2 || may only be filed under seal pursuant to a court order authorizing the sealing of the
3 || specific Protected Material at issue. If a Party’s request to file Protected Material
4 || under seal is denied by the court, then the Receiving Party may file the information
5 || in the public record unless otherwise instructed by the court.
6 || 13. FINAL DISPOSITION
7 After the final disposition of this Action, as defined in paragraph 4, within 60
8 || days of a written request by the Designating Party, each Receiving Party must return
9 || all Protected Material to the Producing Party or destroy such material. As used in
10 || this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
11 || summaries, and any other format reproducing or capturing any of the Protected
12 || Material. Whether the Protected Material is returned or destroyed, the Receiving
13 || Party must submit a written certification to the Producing Party (and, if not the same
14 || person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
15 || (by category, where appropriate) all the Protected Material that was returned or
16 || destroyed and (2) affirms that the Receiving Party has not retained any copies,
17 || abstracts, compilations, summaries or any other format reproducing or capturing any
18 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to
19 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
20 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
21 || reports, attorney work product, and consultant and expert work product, even if such
22 |) materials contain Protected Material. Any such archival copies that contain or
23 || constitute Protected Material remain subject to this Protective Order as set forth in
24 || Section 4 (DURATION).
25 || 14. VIOLATION
26 || Any violation of this Order may be punished by appropriate measures including,
27 || without limitation, contempt proceedings and/or monetary sanctions.
28
1 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.
2
3. || DATED: March 27, 2024
4
5 || 4s/ Benjamin F. Tookey
‘ Attorneys for Plaintiff
7
8 || DATED: March 27, 2024
9
10 || 4s/ Morgan E. Pietz
Attorneys for Defendant
12
13. |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
14
15 || DATED: _ 03/28/2024
16 .
7 — Rapehia, Qn. Qe
18 UNITED. STATES MAGISTRATE 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 CREATIVE PHOTOGRAPHERS, INC. v. LINE FINANCIAL,
9 || PBC, et al., Case No. 2:23-cv-05419-JFW-RAO. I agree to comply with and to be
10 || bound by all the terms of this Stipulated Protective Order and I understand and
11 || acknowledge that failure to so comply could expose me to sanctions and punishment
12 || in the nature of contempt. I solemnly promise that I will not disclose in any manner
13 || any information or item that is subject to this Stipulated Protective Order to any
14 || person or entity except in strict compliance with the provisions of this Order.
15 || I further agree to submit to the jurisdiction of the United States District Court for the
16 || Central District of California for enforcing the terms of this Stipulated Protective
17 || Order, even if such enforcement proceedings occur after termination of this action.
18 || [hereby appoint [print or type full name] of
19 [print or type full address and
20 || telephone number] as my California agent for service of process in connection with
21 || this action or any proceedings related to enforcement of this Stipulated Protective
22 || Order.
23
24 || Date:
25 || City and State where sworn and signed:
26 || Printed name:
27 ‘|| Signature:
28