even stipulated 6 protective orders require good cause showing
How later courts described this case
- even stipulated 6 protective orders require good cause showing
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 SALLY EAGLEMAN, ) Case No. 8:23-CV-00673-JWH-JDEx
)
11 )
Plaintiff, ) STIPULATION AND PROPOSED
12 ) PROTECTIVE ORDER
)
13 v. )
)
14 )
NAPHCARE INC., et al., )
15 )
)
16 Defendants. )
)
17
18
1. 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 pursuing this litigation may
22
be warranted. Accordingly, the parties hereby stipulate to and petition the
23
Court to enter the following Stipulated Protective Order. The parties
24
acknowledge that this Order does not confer blanket protections on all
25
disclosures or responses to discovery and that the protection it affords from
26
public disclosure and use extends only to the limited information or items that
27
are entitled to confidential treatment under the applicable legal principles.
28
1 2. GOOD CAUSE STATEMENT
2 This action is likely to involve private financial and tax information for
3 which special protection from public disclosure and from use for any purpose
4 other than prosecution of this action is warranted. Such confidential and
5 private materials and information consist of, among other things, confidential
6 financial information, information otherwise generally unavailable to the
7
public, or which may be privileged or otherwise protected from disclosure
8
under state or federal statutes, court rules, case decisions, or common law.
9
Accordingly, to expedite the flow of information, to facilitate the prompt
10
resolution of disputes over confidentiality of discovery materials, to adequately
11
protect information the parties are entitled to keep confidential, to ensure that
12
the parties are permitted reasonable necessary uses of such material in
13
preparation for and in the conduct of trial, to address their handling at the end
14
of the litigation, and serve the ends of justice, a protective order for such
15
information is justified in this matter. It is the intent of the parties that
16
information will not be designated as confidential for tactical reasons and that
17
nothing be so designated without a good faith belief that it has been
18
maintained in a confidential, non-public manner, and there is good cause why
19
it should not be part of the public record of this case.
20
21 3. ACKNOWLEDGMENT OF UNDER SEAL FILING
22 PROCEDURE
23 The parties further acknowledge, as set forth in Section 14.3, below, that
24 this Stipulated Protective Order does not entitle them to file confidential
25 information under seal; Local Civil Rule 79-5 sets forth the procedures that
26 must be followed and the standards that will be applied when a party seeks
27 permission from the court to file material under seal. There is a strong
28 presumption that the public has a right of access to judicial proceedings and
1 records in civil cases. In connection with non-dispositive motions, good cause
2 must be shown to support a filing under seal. See Kamakana v. City and
3 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
4 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
5 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
6 protective orders require good cause showing), and a specific showing of good
7
cause or compelling reasons with proper evidentiary support and legal
8
justification, must be made with respect to Protected Material that a party
9
seeks to file under seal. The parties’ mere designation of Disclosure or
10
Discovery Material as CONFIDENTIAL does not— without the submission
11
of competent evidence by declaration, establishing that the material sought to
12
be filed under seal qualifies as confidential, privileged, or otherwise
13
protectable—constitute good cause.
14
Further, if a party requests sealing related to a dispositive motion or trial,
15
then compelling reasons, not only good cause, for the sealing must be shown,
16
and the relief sought shall be narrowly tailored to serve the specific interest to
17
be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th
18
Cir. 2010). For each item or type of information, document, or thing sought to
19
be filed or introduced under seal, the party seeking protection must articulate
20
21 compelling reasons, supported by specific facts and legal justification, for the
22 requested sealing order. Again, competent evidence supporting the application
23 to file documents under seal must be provided by declaration.
24 Any document that is not confidential, privileged, or otherwise
25 protectable in its entirety will not be filed under seal if the confidential portions
26 can be redacted. If documents can be redacted, then a redacted version for
27 public viewing, omitting only the confidential, privileged, or otherwise
28 protectable portions of the document, shall be filed. Any application that seeks
1 to file documents under seal in their entirety should include an explanation of
2 why redaction is not feasible.
3 4. DEFINITIONS
4 4.1 Action: Eagleman v. Naphcare, Inc., 8:23-cv-00673-JWH-JDEx.
5 4.2 Challenging Party: a Party or Non-Party that challenges the
6
designation of information or items under this Order.
7
4.3 “CONFIDENTIAL” Information or Items: information
8
(regardless of how it is generated, stored or maintained) or tangible things that
9
qualify for protection under Federal Rule of Civil Procedure 26(c), and as
10
specified above in the Good Cause Statement.
11
4.4 Counsel: Outside Counsel of Record and House Counsel (as well
12
as their support staff).
13
4.5 Designating Party: a Party or Non-Party that designates
14
information or items that it produces in disclosures or in responses to discovery
15
as “CONFIDENTIAL.”
16
4.6 Disclosure or Discovery Material: all items or information,
17
regardless of the medium or manner in which it is generated, stored, or
18
maintained (including, among other things, testimony, transcripts, and tangible
19
20 things), that are produced or generated in disclosures or responses to discovery.
21 4.7 Expert: a person with specialized knowledge or experience in a
22 matter pertinent to the litigation who has been retained by a Party or its
23 counsel to serve as an expert witness or as a consultant in this Action.
24 4.8 House Counsel: attorneys who are employees of a party to this
25 Action. House Counsel does not include Outside Counsel of Record or any
26 other outside counsel.
27 4.9 Non-Party: any natural person, partnership, corporation,
28 association or other legal entity not named as a Party to this action.
1 4.10 Outside Counsel of Record: attorneys who are not employees of a
2 party to this Action but are retained to represent a party to this Action and
3 have appeared in this Action on behalf of that party or are affiliated with a law
4 firm that has appeared on behalf of that party, and includes support staff.
5 4.11 Party: any party to this Action, including all of its officers,
6 directors, employees, consultants, retained experts, and Outside Counsel of
7
Record (and their support staffs).
8
4.12 Producing Party: a Party or Non-Party that produces Disclosure or
9
Discovery Material in this Action.
10
4.13 Professional Vendors: persons or entities that provide litigation
11
support services (e.g., photocopying, videotaping, translating, preparing
12
exhibits or demonstrations, and organizing, storing, or retrieving data in any
13
form or medium) and their employees and subcontractors.
14
4.14 Protected Material: any Disclosure or Discovery Material that is
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designated as “CONFIDENTIAL.”
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4.15 Receiving Party: a Party that receives Disclosure or Discovery
17
Material from a Producing Party.
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5. SCOPE
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The protections conferred by this Stipulation and Order cover not only
20
21 Protected Material (as defined above), but also (1) any information copied or
22 extracted from Protected Material; (2) all copies, excerpts, summaries, or
23 compilations of Protected Material; and (3) any testimony, conversations, or
24 presentations by Parties or their Counsel that might reveal Protected Material.
25 Any use of Protected Material at trial shall be governed by the orders of
26 the trial judge and other applicable authorities. This Order does not govern the
27 use of Protected Material at trial.
28 / / /
1 6. DURATION
2 Once a case proceeds to trial, information that was designated as
3 CONFIDENTIAL or maintained pursuant to this protective order used or
4 introduced as an exhibit at trial becomes public and will be presumptively
5 available to all members of the public, including the press, unless compelling
6 reasons supported by specific factual findings to proceed otherwise are made to
7
the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
8
(distinguishing “good cause” showing for sealing documents produced in
9
discovery from “compelling reasons” standard when merits-related documents
10
are part of court record). Accordingly, the terms of this protective order do not
11
extend beyond the commencement of the trial.
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7. DESIGNATING PROTECTED MATERIAL
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7.1 Exercise of Restraint and Care in Designating Material for
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Protection. Each Party or Non-Party that designates information
15
or items for protection under this Order must take care to limit any such
16
designation to specific material that qualifies under the appropriate standards.
17
The Designating Party must designate for protection only those parts of
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material, documents, items or oral or written communications that qualify so
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that other portions of the material, documents, items or communications for
20
21 which protection is not warranted are not swept unjustifiably within the ambit
22 of this Order.
23 Mass, indiscriminate or routinized designations are prohibited.
24 Designations that are shown to be clearly unjustified or that have been made
25 for an improper purpose (e.g., to unnecessarily encumber the case development
26 process or to impose unnecessary expenses and burdens on other parties) may
27 expose the Designating Party to sanctions.
28 / / /
1 If it comes to a Designating Party’s attention that information or items
2 that it designated for protection do not qualify for protection, that Designating
3 Party must promptly notify all other Parties that it is withdrawing the
4 inapplicable designation.
5 7.2 Manner and Timing of Designations. Except as otherwise
6 provided in this Order, or as otherwise stipulated or ordered, Disclosure of
7
Discovery Material that qualifies for protection under this Order must be
8
clearly so designated before the material is disclosed or produced.
9
Designation in conformity with this Order requires:
10
(a) for information in documentary form (e.g., paper or electronic
11
documents, but excluding transcripts of depositions or other pretrial or trial
12
proceedings), that the Producing Party affix at a minimum, the legend
13
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page
14
that contains protected material. If only a portion of the material on a page
15
qualifies for protection, the Producing Party also must clearly identify the
16
protected portion(s) (e.g., by making appropriate markings in the margins).
17
A Party or Non-Party that makes original documents available for
18
inspection need not designate them for protection until after the inspecting
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Party has indicated which documents it would like copied and produced.
20
21 During the inspection and before the designation, all of the material made
22 available for inspection shall be deemed “CONFIDENTIAL.” After the
23 inspecting Party has identified the documents it wants copied and produced,
24 the Producing Party must determine which documents, or portions thereof,
25 qualify for protection under this Order. Then, before producing the specified
26 documents, the Producing Party must affix the “CONFIDENTIAL legend” to
27 each page that contains Protected Material. If only a portion of the material on
28 a page qualifies for protection, the Producing Party also must clearly identify
1 the protected portion(s) (e.g., by making appropriate markings in the margins).
2 (b) for testimony given in depositions that the Designating Party
3 identifies the Disclosure or Discovery Material on the record, before the close
4 of the deposition all protected testimony.
5 (c) for information produced in some form other than
6 documentary and for any other tangible items, that the Producing Party affix
7
in a prominent place on the exterior of the container or containers in which the
8
information is stored the legend “CONFIDENTIAL.” If only a portion or
9
portions of the information warrants protection, the Producing Party, to the
10
extent practicable, shall identify the protected portion(s).
11
7.3 Inadvertent Failures to Designate. If timely corrected, an
12
inadvertent failure to designate qualified information or items does not,
13
standing alone, waive the Designating Party’s right to secure protection under
14
this Order for such material. Upon timely correction of a designation, the
15
Receiving Party must make reasonable efforts to assure that the material is
16
treated in accordance with the provisions of this Order.
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8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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8.1. Timing of Challenges. Any Party or Non-Party may challenge a
19
designation of confidentiality at any time that is consistent with the Court’s
20
21 Scheduling Order.
22 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
23 resolution process under Local Rule 37-1 et seq.
24 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
25 joint stipulation pursuant to Local Rule 37-2.
26 8.4 The burden of persuasion in any such challenge proceeding shall be
27 on the Designating Party. Frivolous challenges, and those made for an
28 improper purpose (e.g., to harass or impose unnecessary expenses and burdens
1 on other parties) may expose the Challenging Party to sanctions. Unless the
2 Designating Party has waived or withdrawn the confidentiality designation, all
3 parties shall continue to afford the material in question the level of protection
4 to which it is entitled under the Producing Party’s designation until the Court
5 rules on the challenge.
6 9. ACCESS TO AND USE OF PROTECTED MATERIAL
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9.1 Basic Principles. A Receiving Party may use Protected Material that
8
is disclosed or produced by another Party or by a Non-Party in connection
9
with this Action only for prosecuting, defending or attempting to settle this
10
Action. Such Protected Material may be disclosed only to the categories of
11
persons and under the conditions described in this Order. When the Action has
12
been terminated, a Receiving Party must comply with the provisions of section
13
15 below (FINAL DISPOSITION).
14
Protected Material must be stored and maintained by a Receiving Party
15
at a location and in a secure manner that ensures that access is limited to the
16
persons authorized under this Order.
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9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
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otherwise ordered by the court or permitted in writing by the Designating
19
Party, a Receiving Party may disclose any information or item designated
20
21 “CONFIDENTIAL” only to:
22 (a) the Receiving Party’s Outside Counsel of Record in this
23 Action, as well as employees of said Outside Counsel of Record to whom it is
24 reasonably necessary to disclose the information for this Action;
25 (b) the officers, directors, and employees (including House
26 Counsel) of the Receiving Party to whom disclosure is reasonably necessary
27 for this Action;
28 (c) Experts (as defined in this Order) of the Receiving Party to
1 whom disclosure is reasonably necessary for this Action and who have signed
2 an “Acknowledgment and Agreement to Be Bound” to be negotiated by the
3 Parties (“Acknowledgement”);
4 (d) the court and its personnel;
5 (e) court reporters and their staff;
6 (f) professional jury or trial consultants, mock jurors, and
7
Professional Vendors to whom disclosure is reasonably necessary for this
8
Action and who have signed the Acknowledgment;
9
(g) the author or recipient of a document containing the
10
information or a custodian or other person who otherwise possessed or knew
11
the information;
12
(h) during their depositions, witnesses, and attorneys for witnesses,
13
in the Action to whom disclosure is reasonably necessary provided: (1) the
14
deposing party requests that the witness sign the Acknowledgement; and (2)
15
they will not be permitted to keep any confidential information unless they
16
sign the Acknowledgment, unless otherwise agreed by the Designating Party or
17
ordered by the court. Pages of transcribed deposition testimony or exhibits to
18
depositions that reveal Protected Material may be separately bound by the
19
court reporter and may not be disclosed to anyone except as permitted under
20
21 this Stipulated Protective Order; and
22 (i) any mediators or settlement officers and their personnel,
23 mutually agreed upon by any of the parties engaged in settlement discussions.
24 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
25
If a Party is served with a subpoena or a court order issued in other
26
litigation that compels disclosure of any information or items designated in this
27
Action as “CONFIDENTIAL,” that Party must:
28
1 (a) promptly notify in writing the Designating Party. Such
2 notification shall include a copy of the subpoena or court order;
3 (b) promptly notify in writing the party who caused the subpoena
4 or order to issue in the other litigation that some or all of the material covered
5 by the subpoena or order is subject to this Protective Order. Such notification
6 shall include a copy of this Stipulated Protective Order; and
7
(c) cooperate with respect to all reasonable procedures sought to be
8
pursued by the Designating Party whose Protected Material may be affected. If
9
the Designating Party timely seeks a protective order, the Party served with the
10
subpoena or court order shall not produce any information designated in this
11
action as “CONFIDENTIAL” before a determination by the court from which
12
the subpoena or order issued, unless the Party has obtained the Designating
13
Party’s permission. The Designating Party shall bear the burden and expense
14
of seeking protection in that court of its confidential material and nothing in
15
these provisions should be construed as authorizing or encouraging a
16
Receiving Party in this Action to disobey a lawful directive from another court.
17
11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
18
BE PRODUCED IN THIS LITIGATION
19 (a) The terms of this Order are applicable to information produced
by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
20
information produced by Non-Parties in connection with this litigation is
21 protected by the remedies and relief provided by this Order. Nothing in these
22 provisions should be construed as prohibiting a Non-Party from seeking
additional protections.
23
(b) In the event that a Party is required, by a valid discovery
24
request, to produce a Non-Party’s confidential information in its possession,
25
and the Party is subject to an agreement with the Non-Party not to produce the
26
Non-Party’s confidential information, then the Party shall:
27
(1) promptly notify in writing the Requesting Party and the Non-
28
1 Party that some or all of the information requested is subject to a
2 confidentiality agreement with a Non-Party;
3 (2) promptly provide the Non-Party with a copy of the Stipulated
4 Protective Order in this Action, the relevant discovery request(s), and a
5 reasonably specific description of the information requested; and
6 (3) make the information requested available for inspection by the
7
Non-Party, if requested.
8
(c) If the Non-Party fails to seek a protective order from this court
9
within 14 days of receiving the notice and accompanying information, the
10
Receiving Party may produce the Non-Party’s confidential information
11
responsive to the discovery request. If the Non-Party timely seeks a protective
12
order, the Receiving Party shall not produce any information in its possession
13
or control that is subject to the confidentiality agreement with the Non-Party
14
before a determination by the court. Absent a court order to the contrary, the
15
Non-Party shall bear the burden and expense of seeking protection in this court
16
of its Protected Material.
17
12. UNAUTHORIZED DISCLOSURE OF PROTECTED
18
MATERIAL
19
If a Receiving Party learns that, by inadvertence or otherwise, it has
20
21 disclosed Protected Material to any person or in any circumstance not
22 authorized under this Stipulated Protective Order, the Receiving Party must
23 immediately (a) notify in writing the Designating Party of the unauthorized
24 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
25 Protected Material, (c) inform the person or persons to whom unauthorized
26 disclosures were made of all the terms of this Order, and (d) request such
27 person or persons to execute the Acknowledgment.
28
1 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
2
3 When a Producing Party gives notice to Receiving Parties that certain
4 inadvertently produced material is subject to a claim of privilege or other
5 protection, the obligations of the Receiving Parties are those set forth in
6 Federal Rule of Civil\ Procedure 26(b)(5)(B). This provision is not intended to
7
modify whatever procedure may be established in an e-discovery order that
8
provides for production without prior privilege review. Under Federal Rule of
9
Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect
10
of disclosure of a communication or information covered by the attorney-client
11
privilege or work product protection, the parties may incorporate their
12
agreement in the stipulated protective order submitted to the court.
13
14. MISCELLANEOUS
14
14.1 Right to Further Relief. Nothing in this Order abridges the right of
15
any person to seek its modification by the Court in the future.
16
14.2 Right to Assert Other Objections. By stipulating to the entry of this
17
Protective Order, no Party waives any right it otherwise would have to object
18
to disclosing or producing any information or item on any ground not
19
addressed in this Stipulated Protective Order. Similarly, no Party waives any
20
21 right to object on any ground to use in evidence of any of the material covered
22 by this Protective Order.
23 14.3 Filing Protected Material. A Party that seeks to file under seal any
24 Protected Material must comply with Local Civil Rule 79-5. Protected
25 Material may only be filed under seal pursuant to a court order authorizing the
26 sealing of the specific Protected Material. If a Party’s request to file Protected
27 Material under seal is denied by the court, then the Receiving Party may file
28 the information in the public record unless otherwise instructed by the court.
1 15. FINAL DISPOSITION
2 After the final disposition of this Action, as defined in paragraph 6,
3 || within 60 days of a written request by the Designating Party, each Receiving
4 || Party must return all Protected Material to the Producing Party or destroy such
> || material. As used in this subdivision, “all Protected Material” includes all
6 copies, abstracts, compilations, summaries, and any other format reproducing
or capturing any of the Protected Material. Whether the Protected Material is
8 returned or destroyed, the Receiving Party must submit a written certification
° to the Producing Party (and, if not the same person or entity, to the
0 Designating Party) by the 60-day deadline that (1) identifies (by category,
where appropriate) all the Protected Material that was returned or destroyed
and (2) affirms that the Receiving Party has not retained any copies, abstracts,
4 compilations, summaries or any other format reproducing or capturing any of
5 the Protected Material. Notwithstanding this provision, Counsel are entitled to
16 retain an archival copy of all pleadings, motion papers, trial, deposition, and
UW hearing transcripts, legal memoranda, correspondence, deposition and trial
18 exhibits, expert reports, attorney work product, and consultant and expert
19 || work product, even if such materials contain Protected Material. Any such
29 || archival copies that contain or constitute Protected Material remain subject to
21 || this Protective Order as set forth in Section 6 (DURATION).
22 16. VIOLATION
23 Any violation of this Order may be punished by appropriate measures
24 including contempt proceedings and/or monetary sanctions.
25 || FOR GOOD CAUSE SHOWN, IT IS SO DPRED
26 DATED: April 17, 2024 “
27 Geen D. EARLY
28 United States Magistrate Judge
14