distinguishing 1 || “good cause” showing for sealing documents produced in discovery from 2 || “compelling reasons” standard when merits-related documents are part of court 3 || record
How later courts described this case
- distinguishing 1 || “good cause” showing for sealing documents produced in discovery from 2 || “compelling reasons” standard when merits-related documents are part of court 3 || record
Written by the judges who cited it.
The opinion
1 || Mildred K. O’Linn (State Bar No. 159055)
missy.olinn@manningkass.com
2 || Geoffrey R P owden enol
eoffrey.plowden@manningkass.com
3 INC G& KASS
ELLROD, RAMIREZ, TRESTER LLP
4||801 S. Figueroa St, 15" Floor
Los Angeles, California 90017-3012
emee 513)'604-6099. NOTE: CHANGES MADE BY THE COUR!
6
Attomeys for Defendants, CITY OF
7|| VENTURA, a municipal entity;
SERGEANT SAM HARBERT, an
8 || individual
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
2 11 || CHRISTOPHER HAYS, an individual, | Case No. 2:20-cv-03652-MWE (ASx)
{District Judge Michael W. Fitzgerald;
= 12 Plaintiff, agistrate Judge Alka Sagar]
S 13 V. [DISCOVERY MATTER]
□□ CITY OF VENTURA, municipal PROTECTIVE ORDER
<x entity, SERGEANT SAM HARBERT,
15/fan individual; and DOES 1| through 10,
inclusive,
16
Defendants.
17
18
19 1. A. PURPOSES AND LIMITATIONS
50 Discovery in this action is likely to involve production of confidential,
51 proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation maybe
33 warranted. Accordingly, the parties hereby stipulate to and petition the Court to
54 enter the following Stipulated Protective Order. The parties acknowledge that this
95 Order does not confer blanket protections on all disclosures or responses to
discovery and that the protection it affords from public disclosure and use extends
57 only to the limited information or items that are entitled to confidential treatment
38 under the applicable legal principles. The parties further acknowledge, as set forth in
1 || 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 B. GOOD CAUSE STATEMENT
6 This action is likely to involve disclosure of medical and psychiatric records
7 || of plaintiff and peace officer personnel files and official information from Ventura
8 || Police Department for which special protection from public disclosure and from use
9 || for any purpose other than prosecution of this action is warranted. Such confidential
10 || and proprietary materials and information consist of, among other things,
2 11 || confidential medical records, psychiatric records, military records, peace officer
x 12 || personnel information and official information, generally unavailable to the public,
13 || or which may be privileged or otherwise protected from disclosure under state or
S$ 14 || federal statutes, court rules, case decisions, or common law. Public disclosure of
15 || said information could impede candor in investigations and invade the privacy of
16 || individuals. Accordingly, to expedite the flow of information, to facilitate the
17 || prompt resolution of disputes over confidentiality of discovery materials, to
18 || adequately protect information the parties are entitled to keep confidential, to
19 ||ensure that the parties are permitted reasonable necessary uses of such material in
20 || preparation for and in the conduct of trial, to address their handling at the end of the
21 || litigation, and serve the ends of justice, a protective order for such information is
22 || justified in this matter. It is the intent of the parties that information will not be
23 || designated as confidential for tactical reasons and that nothing be so designated
24 || without a good faith belief that it has been maintained in a confidential, non-public
25 || manner, and there is good cause why it should not be part of the public record of this
26 || case.
27 2. DEFINITIONS
28 2.1 Action: This pending federal law suit.
1 2.2. Challenging Party: a Party or Non-Party that challenges the
2 || designation of information or items under this Order.
3 2.3. “CONFIDENTIAL” Information or Items: information
4 || (regardless of how it is generated, stored or maintained) or tangible things that
5 || qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified
6 || above in the Good Cause Statement.
7 2.4 Counsel: Outside Counsel of Record and House Counsel (as well
8 || as their support staff).
9 2.5 Designating Party: a Party or Non-Party that designates
10 || information or items that it produces in disclosures or in responses to discovery as
2 |/“CONFIDENTIAL.”
x 12 2.6 Disclosure or Discovery Material: all items or information,
13 || regardless of the medium or manner in which it is generated, stored, or maintained
S$ 14 || (including, among other things, testimony, transcripts, and tangible things), that are
15 || produced or generated in disclosures or responses to discovery in this matter.
16 2.7 Expert: a person with specialized knowledge or experience in a
17 || matter pertinent to the litigation who has been retained by a Party or its counsel to
18 || serve as an expert witness or as a consultant in this Action.
19 2.8 House Counsel: attorneys who are employees of a party to this
20 || Action. House Counsel does not include Outside Counsel of Record or any other
21 || outside counsel.
22 2.9 Non-Party: any natural person, partnership, corporation,
23 || association, or other legal entity not named as a Party to this action.
24 2.10 Outside Counsel of Record: attorneys who are not employees of
25 || a party to this Action but are retained to represent or advise a party to this Action
26 || and have appeared in this Action on behalf of that party or are affiliated with a law
27 || firm which has appeared on behalf of that party, and includes support staff.
28
1 2.11 Party: any party to this Action, including all of its officers,
2 || directors, employees, consultants, retained experts, and Outside Counsel of Record
3 || (and their support staffs).
4 2.12 Producing Party: a Party or Non-Party that produces Disclosure
5 || or Discovery Material in this Action.
6 2.13 Professional Vendors: persons or entities that provide litigation
7 || support services (e.g., photocopying, videotaping, translating, preparing exhibits or
8 || demonstrations, and organizing, storing, or retrieving data in any form or medium)
9 || and their employees and subcontractors.
10 2.14 Protected Material: any Disclosure or Discovery Material that is
2 11 |/designated as “CONFIDENTIAL.”
x 12 2.15 Receiving Party: a Party that receives Disclosure or Discovery
13 || Material from a Producing Party.
3. SCOPE
15 The protections conferred by this Stipulation and Order cover not only
16 || Protected Material (as defined above), but also (1) any information copied or
17 || extracted from Protected Material; (2) all copies, excerpts, summaries, or
18 || compilations of Protected Material; and (3) any testimony, conversations, or
19 || presentations by Parties or their Counsel that might reveal Protected Material.
20 Any use of Protected Material at trial shall be governed by the orders of the
21 || trial judge. This Order does not govern the use of Protected Material at trial.
22 4. DURATION
23 Once a case proceeds to trial, all of the information that was designated
24 || as confidential or maintained pursuant to this protective order becomes public and
25 || will be presumptively available to all members of the public, including the press,
26 || unless compelling reasons supported by specific factual findings to proceed
27 || otherwise are made to the trial judge in advance of the trial. See Kamakana v. City
28 || and County of Honolulu, 447 F.3d 1172, 1180-81 (9" Cir. 2006) (distinguishing
1 || “good cause” showing for sealing documents produced in discovery from
2 || “compelling reasons” standard when merits-related documents are part of court
3 || record). Accordingly, the terms of this protective order do not extend beyond the
4 || commencement of the trial.
5 5. DESIGNATING PROTECTED MATERIAL
6 5.1 Exercise of Restraint and Care in Designating Material for
7 || Protection. Each Party or Non-Party that designates information or items for
8 || protection under this Order must take care to limit any such designation to specific
9 || material that qualifies under the appropriate standards. The Designating Party must
10 || designate for protection only those parts of material, documents, items, or oral or
2 11 || written communications that qualify so that other portions of the material,
x 12 || documents, items, or communications for which protection is not warranted are not
13 || swept unjustifiably within the ambit of this Order.
S$ 14 Mass, indiscriminate, or routinized designations are prohibited. Designations
15 || that are shown to be clearly unjustified or that have been made for an improper
16 || purpose (e.g., to unnecessarily encumber the case development process or to impose
17 || unnecessary expenses and burdens on other parties) may expose the Designating
18 || Party to sanctions.
19 If it comes to a Designating Party’s attention that information or items that it
20 || designated for protection do not qualify for protection, that Designating Party must
21 || promptly notify all other Parties that it is withdrawing the inapplicable designation.
22 5.2 Manner and Timing of Designations. Except as otherwise provided in
23 || this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
24 || stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
25 || under this Order must be clearly so designated before the material is disclosed or
26 || produced.
27 Designation in conformity with this Order requires:
28 (a) for information in documentary form (e.g., paper or electronic
1 || documents, but excluding transcripts of depositions or other pretrial or trial
2 || proceedings), that the Producing Party affix at a minimum, the legend
3 || “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”’), to each page that
4 || contains protected material. If only a portion or portions of the material on a page
5 || qualifies for protection, the Producing Party also must clearly identify the protected
6 || portion(s) (e.g., by making appropriate markings in the margins).
7 A Party or Non-Party that makes original documents available for inspection
8 || need not designate them for protection until after the inspecting Party has indicated
9 || which documents it would like copied and produced. During the inspection and
10 || before the designation, all of the material made available for inspection shall be
2 11 || deemed “CONFIDENTIAL.” After the inspecting Party has identified the
x 12 || documents it wants copied and produced, the Producing Party must determine which
13 || documents, or portions thereof, qualify for protection under this Order. hen, before
S$ 14 || producing the specified documents, the Producing Party must affix the
15 || “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
16 || portion or portions of the material on a page qualifies for protection, the Producing
Party also must clearly identify the protected portion(s) (e.g., by making appropriate
18 || markings in the margins).
19 (b) for testimony given in depositions that the Designating Party
20 || identify the Disclosure or Discovery Material on the record, before the close of the
21 || deposition all protected testimony.
22 (c) for information produced in some form other than documentary and
23 || for any other tangible items, that the Producing Party affix in a prominent place on
24 || the exterior of the container or containers in which the information is stored the
25 || legend “CONFIDENTIAL.” If only a portion or portions of the information
26 || warrants protection, the Producing Party, to the extent practicable, shall identify the
27 || protected portion(s).
28
1 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent
2 || failure to designate qualified information or items does not, standing alone, waive
3 || the Designating Party’s right to secure protection under this Order for such material.
4 || Upon timely correction of a designation, the Receiving Party must make reasonable
5 || efforts to assure that the material is treated in accordance with the provisions of this
6 || Order.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
8 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
9 || designation of confidentiality at any time that is consistent with the Court’s
10 || Scheduling Order.
2 11 6.2 Meet and Confer. The Challenging Party shall initiate the informal
2 dispute resolution process set forth in the Court's Procedures and Schedules. see
13 || http://www.cacd.uscourts.gov/honorable-alka-sagar
S$ 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.
22117. 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
1 || Receiving Party must comply with the provisions of section 13 below (FINAL
2 || DISPOSITION).
3 Protected Material must be stored and maintained by a Receiving Party at a
4 || location and in a secure manner that ensures that access is limited to the persons
5 || authorized under this Order.
6 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
7 || otherwise ordered by the court or permitted in writing by the Designating Party, a
8 || Receiving Party may disclose any information or item designated
9 || “CONFIDENTIAL” only to:
10 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
2 11 || well as employees of said Outside Counsel of Record to whom it is reasonably
x 12 necessary to disclose the information for this Action;
13 (b) the officers, directors, and employees (including House Counsel) of
S$ 14 || the Receiving Party to whom disclosure is reasonably necessary for this Action;
15 (c) Experts (as defined in this Order) of the Receiving Party to whom
16 || disclosure 1s reasonably necessary for this Action and who have signed the
17 || ““Acknowledgment and Agreement to Be Bound” (Exhibit A);
18 (d) the court and its personnel;
19 (e) court reporters and their staff;
20 (f) professional jury or trial consultants, mock jurors, and Professional
21 || Vendors to whom disclosure is reasonably necessary for this Action and who have
22 || signed the “Acknowledgment and Agreement to Be Bound”;
23 (g) the author or recipient of a document containing the information or
24 || a custodian or other person who otherwise possessed or knew the information;
25 (h) during their depositions, witnesses, and attorneys for witnesses, in
26 || the Action to whom disclosure is reasonably necessary provided: (1) the deposing
27 || party requests that the witness sign the form attached as Exhibit A hereto; and (2)
28 || they will not be permitted to keep any confidential information unless they sign the
1 || “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
2 || agreed by the Designating Party or ordered by the court. Pages of transcribed
3 || deposition testimony or exhibits to depositions that reveal Protected Material may
4 || be separately bound by the court reporter and may not be disclosed to anyone except
5 ||as permitted under this Stipulated Protective Order; and
6 (i) any mediator or settlement officer, and their supporting personnel,
7 mutually agreed upon by any of the parties engaged in settlement discussions.
8 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
9 || IN OTHER LITIGATION
10 If a Party is served with a subpoena or a court order issued in other litigation
2 11 || that compels disclosure of any information or items designated in this Action as
2 “CONFIDENTIAL,” that Party must:
13 (a) promptly notify in writing the Designating Party. Such notification
S$ 14 || shall include a copy of the subpoena or court order;
15 (b) promptly notify in writing the party who caused the subpoena or
16 || order to issue in the other litigation that some or all of the material covered by the
17 || subpoena or order is subject to this Protective Order. Such notification shall include
18 || a copy of this Stipulated Protective Order; and
19 (c) cooperate with respect to all reasonable procedures sought to be
20 || pursued by the Designating Party whose Protected Material may be affected. If the
21 || Designating Party timely seeks a protective order, the Party served with the
22 || subpoena or court order shall not produce any information designated in this action
23 || as “CONFIDENTIAL” before a determination by the court from which the
24 || subpoena or order issued, unless the Party has obtained the Designating Party’s
25 || permission. The Designating Party shall bear the burden and expense of seeking
26 || protection in that court of its confidential material and nothing in these provisions
27 || should be construed as authorizing or encouraging a Receiving Party in this Action
28 || to disobey a lawful directive from another court.
1/}9. NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
2 || IN THIS LITIGATION
3 (a) The terms of this Order are applicable to information produced by a
4 || Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
5 || produced by Non-Parties in connection with this litigation is protected by the
6 || remedies and relief provided by this Order. Nothing in these provisions should be
7 || construed as prohibiting a Non-Party from seeking additional protections.
8 (b) In the event that a Party is required, by a valid discovery request, to
9 || produce a Non-Party’s confidential information in its possession, and the Party is
10 || subject to an agreement with the Non-Party not to produce the Non-Party’s
2 11 || confidential information, then the Party shall:
x 12 (1) promptly notify in writing the Requesting Party and the Non-
13 || Party that some or all of the information requested is subject to a confidentiality
14 || agreement with a Non-Party;
15 (2) promptly provide the Non-Party with a copy of the Stipulated
16 || Protective Order in this Action, the relevant discovery request(s), and a reasonably
17 || specific description of the information requested; and
18 (3) make the information requested available for inspection by
19 || the Non-Party, if requested.
20 (c) If the Non-Party fails to seek a protective order from this court
21 || within 14 days of receiving the notice and accompanying information, the Receiving
22 || Party may produce the Non-Party’s confidential information responsive to the
23 || discovery request. If the Non-Party timely seeks a protective order, the Receiving
24 || Party shall not produce any information in its possession or control that is subject to
25 || the confidentiality agreement with the Non-Party before a determination by the
26 ||court. Absent a court order to the contrary, the Non-Party shall bear the burden and
27 || expense of seeking protection in this court of its Protected Material.
28
1/10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
3 || Protected Material to any person or in any circumstance not authorized under this
4 || Stipulated Protective Order, the Receiving Party must immediately (a) notify in
5 || writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
6 || to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
7 || persons to whom unauthorized disclosures were made of all the terms of this Order,
8 || and (d) request such person or persons to execute the “Acknowledgment and
9 || Agreement to Be Bound.”
10|}11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
2 11 || PROTECTED MATERIAL
12 When a Producing Party gives notice to Receiving Parties that certain
13 || inadvertently produced material is subject to a claim of privilege or other protection,
S$ 14 || the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15 || Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
16 || may be established in an e-discovery order that provides for production without
17 || prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
18 || as the parties reach an agreement on the effect of disclosure of a communication or
19 || information covered by the attorney-client privilege or work product protection, the
20 || parties may incorporate their agreement in the stipulated protective order submitted
21 to the court.
22|}12. MISCELLANEOUS
23 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
24 || person to seek its modification by the Court in the future.
25 12.2 Right to Assert Other Objections. By stipulating to the entry of this
26 || Protective Order no Party waives any right it otherwise would have to object to
27 || disclosing or producing any information or item on any ground not addressed in this
28
1 || Stipulated Protective Order. Similarly, no Party waives any right to object on any
2 || ground to use in evidence of any of the material covered by this Protective Order.
3 12.3 Filing Protected Material. A Party that seeks to file under seal any
4 || Protected Material must comply with Civil Local Rule 79-5. Protected Material may
5 || only be filed under seal pursuant to a court order authorizing the sealing of the
6 || specific Protected Material at issue. Ifa Party's request to file Protected Material
7 || under seal is denied by the court, then the Receiving Party may file the information
8 || in the public record unless otherwise instructed by the court.
9}}13. FINAL DISPOSITION
10 After the final disposition of this Action, as defined in paragraph 4, within 60
2 11 || days of a written request by the Designating Party, each Receiving Party must return
Jal Protected Material to the Producing Party or destroy such material. As used in
13 || this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
|| summaries, and any other format reproducing or capturing any of the Protected
15 || Material. Whether the Protected Material is returned or destroyed, the Receiving
16 || Party must submit a written certification to the Producing Party (and, if not the same
17 || person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
18 || (by category, where appropriate) all the Protected Material that was returned or
19 || destroyed and (2)affirms that the Receiving Party has not retained any copies,
20 || abstracts, compilations, summaries or any other format reproducing or capturing any
21 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to
22 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
23 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
24 || reports, attorney work product, and consultant and expert work product, even if such
25 || materials contain Protected Material. Any such archival copies that contain or
26 || constitute Protected Material remain subject to this Protective Order as set forth in
27 || Section 4 (DURATION).
28
1|/14. Any violation of this Order may be punished by any and all appropriate
2 || measures including, without limitation, contempt proceedings and/or monetary
3 || sanctions.
4)IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
5
6|| DATED: May 1, 2024 MANNING & KASS
7 ELLROD, RAMIREZ, TRESTER LLP
By: /s/ Geoffrey Plowden
10 Geoffrey Plowden
il Attorneys for Defendants, CITY OF
<= VENTURA and SAM HARBERT,
— 12
©
2 13\|DATED: May 1, 2024
=
= 14
< By: /s/ Brian Dunn
= 15 Brian Dunn
16 Attorneys for Plaintiff, CHRISTOPHER
HAYS
17
18
□□ FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED: __ May 6, 2024
1 /s/ Sagar
22 || Honorable Alka Snoar
United States Magistrate Judge
23
24
25
26
27
28
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 II, [print or type full name], of
4 [print or type full address], declare under penalty of perjury
5 || that I have read in its entirety and understand the Stipulated Protective Order that
6 || was issued by the United States District Court for the Central District of California
7 |/on [date] in the case of Christopher Hays v. City of Ventura,
8 || Case No. 2:20-cv-03652-MWFEF (ASx). I agree to comply with and to be bound by
9 || all the terms of this Stipulated Protective Order and I understand and acknowledge
10 || that failure to so comply could expose me to sanctions and punishment in the nature
2 11 || of contempt. I solemnly promise that I will not disclose in any manner any
x 12 || information or item that is subject to this Stipulated Protective Order to any person
13 || or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
15 || Central District of California for enforcing the terms of this Stipulated Protective
16 || Order, even if such enforcement proceedings occur after termination of this action.
17 || I hereby appoint [print or type full name] of
18 [print or type 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 sworn and signed:
24
25 || Printed name:
26
27 || Signature:
28