Wishtoyo Foundation v. Los Angeles Coastkeeper et al

Filing 273

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 263 (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WISHTOYO FOUNDATION and its
VENTURA COASTKEEPER program, a
non-profit corporation, LOS ANGELES
COASTKEEPER d/b/a SANTA
MONICA BAYKEEPER, a non-profit
corporation, and FRIENDS OF THE
SANTA CLARA RIVER, a non-profit
corporation,
Plaintiffs,
vs.
MAGIC MOUNTAIN LLC, a California
Limited Liability Company; SIX FLAGS
THEME PARKS, INC., a Delaware
Corporation,
Defendants.

Case No.: 2:12-cv-5600-SVW (MANx)

PROTECTIVE ORDER
ENTERED PURSUANT TO THE
STIPULATION OF THE PARTIES

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on

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the parties’ Stipulated Protective Order Regarding Confidential Materials

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(“Stipulation”) filed on December 4, 2014, the terms of the protective order to

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which the parties have agreed are adopted as a protective order of this Court

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(which generally shall govern the pretrial phase of this action) except to the

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extent, as set forth below, that those terms have been substantively modified by

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the Court’s amendment of paragraphs 2, 3, 5, 7, 9, and 10 of the Stipulation.

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The parties are expressly cautioned that the designation of any information,

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document, or thing as Confidential, Confidential – Attorney’s Eyes Only, or other

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designation(s) used by the parties, does not, in and of itself, create any entitlement

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to file such information, document, or thing, in whole or in part, under seal.

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Accordingly, reference to this Protective Order or to the parties’ designation of

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any information, document, or thing as Confidential, Confidential – Attorney’s

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Eyes Only, or other designation(s) used by the parties, is wholly insufficient to

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warrant a filing under seal.

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There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases.

In connection with non-dispositive

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motions, good cause must be shown to support a filing under seal. The parties’

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mere designation of any information, document, or thing as Confidential,

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Confidential – Attorney’s Eyes Only, or other designation(s) used by parties, does

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not -- without the submission of competent evidence, in the form of a

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declaration or declarations, establishing that the material sought to be filed

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under seal qualifies as confidential, privileged, or otherwise protectable --

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constitute good cause.

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Further, if sealing is requested in connection with a dispositive motion or

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trial, then compelling reasons, as opposed to good cause, for the sealing must be

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shown, and the relief sought shall be narrowly tailored to serve the specific

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interest to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 6771

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79 (9th Cir. 2010). For each item or type of information, document, or thing

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sought to be filed or introduced under seal in connection with a dispositive motion

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or trial, the party seeking protection must articulate compelling reasons, supported

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by specific facts and legal justification, for the requested sealing order. Again,

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competent evidence supporting the application to file documents under seal

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must be provided by declaration.

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Any document that is not confidential, privileged, or otherwise protectable

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in its entirety will not be filed under seal if the confidential portions can be

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redacted.

If documents can be redacted, then a redacted version for public

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viewing, omitting only the confidential, privileged, or otherwise protectable

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portions of the document, shall be filed.

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documents under seal in their entirety should include an explanation of why

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redaction is not feasible.

Any application that seeks to file

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Notwithstanding any other provision of this Protective Order, in the event

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that this case proceeds to trial, all information, documents, and things discussed or

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introduced into evidence at trial will become public and available to all members

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of the public, including the press, unless sufficient cause is shown in advance of

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trial to proceed otherwise.

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Further, notwithstanding any other provision of this Protective Order, no

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obligation is imposed on the Court or its personnel beyond those imposed by the

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Court’s general practices and procedures.

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THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND

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ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE

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HONORABLE STEPHEN V. WILSON, UNITED STATES DISTRICT

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JUDGE.

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AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND

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MODIFIED BY THE COURT 1

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1.

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In connection with discovery proceedings in this action, the parties

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may designate any document, thing, material, testimony or other information

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derived therefrom, as “Confidential” under the terms of this Protective Order

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(hereinafter “Order”). Confidential information is information which has not been

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made public and which concerns or relates to the processes, operations, type or

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work, or apparatus, or to the production, sales, shipments, purchases, transfers,

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identification of customers, inventories, amount or source of any income, profits,

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losses, or expenditures of any persons, firm, partnership, corporation, or other

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organization, the disclosure of which information may have the effect of causing

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harm to the competitive position of the person, firm, partnership, corporation, or

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to the organization from which the information was obtained.
2.

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By designating a document, thing, material, deposition testimony, or

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other information derived therefrom as “confidential,” under the terms of this

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Order, the party making the designation is certifying to the Court that there is a

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good faith basis both in law and in fact for the designation.

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documents shall be so designated by stamping copies of the document produced to

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a party with the legend “CONFIDENTIAL.”

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“CONFIDENTIAL” on the cover of any multipage document shall designate all

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pages of the document as confidential, unless otherwise indicated by the

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producing party.
3.

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Confidential

Stamping the legend

Testimony taken at a deposition may be designated as confidential by

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making a statement to that effect on the record at the deposition or other

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proceeding.

Arrangements shall be made with the court reporter taking and

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The Court’s substantive modifications of the agreed terms of the Protective
Order are generally indicated in bold typeface.
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transcribing such proceeding to separately bind such portions of the transcript

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containing information designated as confidential, and to label such portions

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appropriately.

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4.

Material designated as confidential under this Order, the information

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contained therein, and any summaries, copies, abstracts, or other documents

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derived in whole or in part from material designated as confidential (hereinafter

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“Confidential Material”) shall be used only for the purpose of the prosecution,

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defense, or settlement of this action, and for no other purpose.
5.

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Confidential Material produced pursuant to this Order may be

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disclosed or made available only to the Court and its staff, to counsel for a party

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(including the paralegal, clerical, and secretarial staff employed by such counsel),

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and to the “qualified persons” designated below:
(a)

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a party, or an officer, director, or employee of a party deemed

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necessary by counsel to aid in the prosecution, defense, or settlement of this

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action;
(b)

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experts or consultants (together with their clerical staff)

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retained by such counsel to assist in the prosecution, defense, or settlement of this

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action;

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(c)

court reporter(s) employed in this action;

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(d)

a witness at any deposition or other proceeding in this action;

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(e)

any other person as to whom the parties in writing agree.

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Prior to receiving any Confidential Material, each “qualified person”

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shall be provided with a copy of this Order and shall execute a nondisclosure

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agreement in the form of Attachment A, a copy of which shall be provided

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forthwith to counsel for each other party and for the parties.

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and

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6.

Depositions shall be taken only in the presence of qualified persons.

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7.

The parties may further designate certain discovery material or
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testimony of a highly confidential and/or proprietary nature as “CONFIDENTIAL

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– ATTORNEY’S EYES ONLY” (hereinafter “Attorney’s Eyes Only Material”),

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in the manner described in paragraphs 2 and 3 above. Attorney’s Eyes Only

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Material, and the information contained therein, shall be disclosed only to the

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Court and its staff, to counsel for the parties (including the paralegal, clerical, and

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secretarial staff employed by such counsel), and to the “qualified persons” listed

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in subparagraphs 5(b) through (e) above, but shall not be disclosed to a party, or to

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an officer, director or employee of a party, unless otherwise agreed or ordered.

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For the purposes of this Order, counsel for the parties includes in-house counsel.

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If disclosure of Attorney’s Eyes Only Material is made pursuant to this paragraph,

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all other provisions in this order with respect to confidentiality shall also apply.

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8.

Nothing herein shall impose any restrictions on the use or disclosure

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by a party of material obtained by such party independent of discovery in this

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action, whether or not such material is also obtained through discovery in this

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action, or from disclosing its own Confidential Material as it deems appropriate.

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9.

If Confidential Material, including any portion of a deposition

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transcript designated as Confidential or Attorney’s Eyes Only, is included in any

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papers to be filed in Court, such material shall be submitted to the Court with

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an application to seal in accordance with this Court’s Local Rule 79-5 and the

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provisions of this Order.

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10.

In the event that any Confidential Material is used in any court

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proceeding in this action, the party using such shall take all reasonable steps to

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maintain its confidentiality during such use.

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11.

This Order shall be without prejudice to the right of the parties to: (i)

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bring before the Court at any time the question of whether any particular

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document or information is confidential or whether its use should be restricted; or

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(ii) present a motion to the Court under FRCP 26(c) for a separate protective order

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as to any particular document or information, including restrictions differing from
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those as specified herein. This Order shall not be deemed to prejudice the parties

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in any way in any future application for modification of this Order.

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12.

This Order is entered solely for the purpose of facilitating the

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exchange of documents and information between the parties to this action without

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involving the Court unnecessarily in the process. Nothing in this Order nor the

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production of any information or document under the terms of this Order nor any

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proceedings pursuant to this Order shall be deemed to have the effect of an

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admission or waiver by either party or of altering the confidentiality or

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nonconfidentiality of any such document or information or altering any existing

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obligation of any party or the absence thereof.
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This Order shall survive the final termination of this action, and the

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Court shall retain jurisdiction to resolve any dispute concerning the use of

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information disclosed hereunder.

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Upon termination of this case, counsel for the parties shall assemble

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and return to each other all documents, material and deposition transcripts

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designated as confidential and all copies of same, or shall certify the destruction

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thereof.

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IT IS SO ORDERED.

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Date: December 18, 2014

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__________________________________
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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Attachment A

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NONDISCLOSURE AGREEMENT

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I, ______________________ do solemnly swear that I am fully familiar

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with the terms of the Protective Order entered in Wishtoyo Foundation, et al. vs.

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Magic Mountain LLC, et al., United States District Court for the Central District

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of California, Civil Action No. 2:12-cv-05600-GAF (MANx), and hereby agree to

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comply with and be bound by the terms and conditions of said Order unless and

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until modified by further Order of the Court. I hereby consent to the jurisdiction

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of said Court for purposes of enforcing this Order.

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Dated:

By: /s/

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