Amber Judge et al v. Eck Properties, LP et al

Filing 38

PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 36 (sbu)

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CRAIG P. FAGAN, State Bar No. 149556
LAW OFFICES OF CRAIG P. FAGAN
6320 Raydel Court
San Diego, CA 92120
Telephone: [phone]
Facsimile: [phone]
email: [e-mail]

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Attorneys for all Plaintiffs

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AMBER JUDGE, an individual, J.M., a
minor by and through her general guardian,
AMBER JUDGE; J.M., a minor by and
through her general guardian, AMBER
JUDGE; J.M., a minor by and through her
general guardian, AMBER JUDGE,

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Plaintiffs,
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v.
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ECK PROPERTIES, LP, a California
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Limited Partnership, L'ABRI
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MANAGEMENT, INC., a California )
Corporation, and DOES 1 through 10,
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Inclusive,
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Defendants
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______________________________

No. 2:16cv05902 CBM (KSx)
STIPULATED PROTECTIVE
ORDER

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1.

A.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential, proprietary or private
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information for which special protection from public disclosure and from use for any purpose other than
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prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the
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Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not
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confer blanket protections on all disclosures or responses to discovery and that the protection it affords

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from public disclosure and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles.

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B.

GOOD CAUSE STATEMENT

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This action involves the release of tenant contact information for which special protection from

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public disclosure and from use for any purpose other than prosecution of this action is warranted. Such

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confidential and proprietary materials and information consist of, among other things, tenant names and

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contact information which may be privileged or otherwise protected from disclosure under state or federal

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statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to

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facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the parties are permitted

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reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their

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handling at the end of the litigation, and serve the ends of justice, a protective order for such information

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is justified in this matter. It is the intent of the parties that information will not be designated as

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confidential for tactical reasons and that nothing be so designated without a good faith belief that it has

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been maintained in a confidential, non-public manner, and there is good cause why it should not be part

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of the public record of this case.

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C.

ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective

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Order does not entitle them to file confidential information under seal; Local Civil Rule 79-5 sets forth

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the procedures that must be followed and the standards that will be applied when a party seeks permission

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from the court to file material under seal. There is a strong presumption that the public has a right of access

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to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause

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must be shown to support a filing under seal. See Kamakana v. City and County of Honolulu, 447 F.3d

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1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002),

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Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective

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orders require good cause showing), and a specific showing of good cause or compelling reasons with

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proper evidentiary support and legal justification, must be made with respect to Protected Material that

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a party seeks to file under seal. The parties’ mere designation of Disclosure or Discovery Material as

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CONFIDENTIAL does not— without the submission of competent evidence by declaration, establishing

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that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise

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protectable—constitute good cause. Further, if a party requests sealing related to a dispositive motion or

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trial, then compelling reasons, not only good cause, for the sealing must be shown, and the relief sought

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shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors

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Ass’n, 605 F.3d 665, 677-79 (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 or trial, the party

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seeking protection must articulate compelling reasons, supported by specific facts and legal justification,

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for the requested sealing order. Again, competent evidence supporting the application to file documents

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under seal must be provided by declaration.

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Any document that is not confidential, privileged, or otherwise protectable in its entirety will not

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be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a

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redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable

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portions of the document, shall be filed. Any application that seeks to file documents under seal in their

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entirety should include an explanation of why redaction is not feasible.

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2.

DEFINITIONS

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2.1

Action: This pending federal lawsuit, as designated in the above-referenced caption.

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2.2

Challenging Party: a Party or Non-Party that challenges the designation of information or

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items under this Order.
2.3

“CONFIDENTIAL”: Information or Items: information (regardless of how it is generated,

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stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure

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2.4

Counsel: Outside Counsel of Record and House Counsel (as well as their support staff).

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2.5

Designating Party: a Party or Non-Party that designates information or items that it

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produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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Disclosure or Discovery Material: all items or information, regardless of the medium or

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manner in which it is generated, stored, or maintained (including, among other things, testimony,

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transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery

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in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a matter pertinent to the

litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant
in this Action.
2.8

House Counsel: attorneys who are employees of a party to this Action. House Counsel does

not include Outside Counsel of Record or any other outside counsel.
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Non-Party: any natural person, partnership, corporation, association or other legal entity

not named as a Party to this action.
2.10

Outside Counsel of Record: attorneys who are not employees of a party to this Action but

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are retained to represent or advise a party to this Action and have appeared in this Action on behalf of that

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party or are affiliated with a law firm that has appeared on behalf of that party, and includes support staff.

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Party: any party to this Action, including all of its officers, directors, employees,

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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2.12

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this Action.

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2.13

Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in

Professional Vendors: persons or entities that provide litigation support services (e.g.,

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photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or

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retrieving data in any form or medium) and their employees and subcontractors.

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2.14

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing

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Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected Material (as

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defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies,

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excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected

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Material at trial shall be governed by the orders of the trial judge. This Order does not govern the use of

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Protected Material at trial.

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4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this Order

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shall remain in effect until a Designating Party agrees otherwise in writing or a court order

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otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and

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defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion

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and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, including the

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time limits for filing any motions or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party or

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Non-Party that designates information or items for protection under this Order must take care to limit any

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such designation to specific material that qualifies under the appropriate standards. The Designating Party

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must designate for protection only those parts of material, documents, items or oral or written

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communications that qualify so that other portions of the material, documents, items or communications

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for which protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass,

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indiscriminate or routinized designations are prohibited. Designations that are shown to be clearly

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unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber the case

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development process or to impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions. If it comes to a Designating Party’s attention that information or items that

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it designated for protection do not qualify for protection, that Designating Party must promptly notify all

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other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g.,

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second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery

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Material that qualifies for protection under this Order must be clearly so designated before the material

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is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but excluding

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transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix at a

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minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings

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in the margins). A Party or Non-Party that makes original documents available for inspection need not

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designate them for protection until after the inspecting Party has indicated which documents it would like

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copied and produced. During the inspection and before the designation, all of the material made available

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for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before producing the specified documents,

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the Producing Party must affix the “CONFIDENTIAL legend” to each page that contains Protected

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Material. If only a portion of the material on a page qualifies for protection, the Producing Party also must

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clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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(b) for testimony given in depositions that the Designating Party identifies the Disclosure
or Discovery Material on the record, before the close of the deposition all protected testimony.

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© for information produced in some form other than documentary and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior of the container or

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containers in which the information is stored the legend “CONFIDENTIAL.” If only a portion or portions

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of the information warrants protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).
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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate

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qualified information or items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. Upon timely correction of a designation, the Receiving Party

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must make reasonable efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

6.1

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Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time that is consistent with the Court’s Scheduling Order.
6.2

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

Meet and Confer. The Challenging Party shall initiate the dispute resolution process under

Local Rule 37.1 et seq.
6.3

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless

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the Designating Party has waived or withdrawn the confidentiality designation, all parties shall continue

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to afford the material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

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produced by another Party or by a Non-Party in connection with this Action only for prosecuting,

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defending or attempting to settle this Action. Such Protected Material may be disclosed only to the

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categories of persons and under the conditions described in this Order. When the Action has been

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terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in a secure
manner that ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the

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court or permitted in writing by the Designating Party, a Receiving Party may disclose any information

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or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees

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of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this

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Action;

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(b) the officers, directors, and employees (including House Counsel) of the Receiving Party
to whom disclosure is reasonably necessary for this Action;

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© Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom

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disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(g) the author or recipient of a document containing the information or a custodian or other
person who otherwise possessed or knew the information;

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(h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom

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disclosure is reasonably necessary provided: (1) the deposing party requests that the witness sign the form

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attached as Exhibit 1 hereto; and (2) they will not be permitted to keep any confidential information unless

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they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by

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the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material may be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective Order; and
(I) any mediator or settlement officer, and their supporting personnel, mutually agreed upon

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by any of the parties engaged in settlement discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that compels

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disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party must:
(a)

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promptly notify in writing the Designating Party. Such notification shall include a copy of

the subpoena or court order;
(b)

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promptly notify in writing the party who caused the subpoena or order to issue in the other

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litigation that some or all of the material covered by the subpoena or order is subject to this Protective

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Order. Such notification shall include a copy of this Stipulated Protective Order; and
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cooperate with respect to all reasonable procedures sought to be pursued by the Designating

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Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order,

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the Party served with the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear

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the burden and expense of seeking protection in that court of its confidential material and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS

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LITIGATION

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(a)

The terms of this Order are applicable to information produced by a Non-Party in this

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Action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in connection

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with this litigation is protected by the remedies and relief provided by this Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b)

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In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s

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confidential information in its possession, and the Party is subject to an agreement with the Non-Party not

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to produce the Non-Party’s confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that some or all of

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the information requested is subject to a confidentiality agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this

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Action, the relevant discovery request(s), and a reasonably specific description of the information

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requested; and
(3) make the information requested available for inspection by the Non-Party, if requested.

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If the Non-Party fails to seek a protective order from this court within 14 days of receiving

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the notice and accompanying information, the Receiving Party may produce the Non-Party’s confidential

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information responsive to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court. Absent a court order

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to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material

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to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving

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Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use

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its best efforts to retrieve all unauthorized copies of the Protected Material, © inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such

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person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto

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as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are

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those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for production without prior

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an

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agreement on the effect of disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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12.

12.1

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MISCELLANEOUS
Right to Further Relief. Nothing in this Order abridges the right of any person to seek its

modification by the Court in the future.
12.2

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Right to Assert Other Objections. By stipulating to the entry of this Protective Order, no

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Party waives any right it otherwise would have to object to disclosing or producing any information or

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item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right

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to object on any ground to use in evidence of any of the material covered by this Protective Order.
12.3

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Filing Protected Material. A Party that seeks to file under seal any Protected Material must

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comply with Local Civil Rule 79-5. Protected Material may only be filed under seal pursuant to a court

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order authorizing the sealing of the specific Protected Material at issue. If a Party’s request to file

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Protected Material under seal is denied by the court, then the Receiving Party may file the information

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in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within 60 days of a written

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request by the Designating Party, each Receiving Party must return all Protected Material to the Producing

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Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies,

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abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a

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written certification to the Producing Party (and, if not the same person or entity, to the Designating Party)

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by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material that

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was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial

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exhibits, expert reports, attorney work product, and consultant and expert work product, even if such

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materials contain Protected Material. Any such archival copies that contain or constitute Protected

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Material remain subject to this Protective Order as set forth in Section 4 (DURATION).

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14.

Any violation of this Order may be punished by appropriate measures including, without limitation,

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VIOLATION

contempt proceedings and/or monetary sanctions.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: March 1, 2017

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____________________________________

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HON. KAREN L. STEVENSON

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United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of ______________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court for the

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Central District of California on _________________ [date] in the case of Amber Judge, et. al. v. Eck

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Properties, L.P., et. al., Case No. 2:16-cv-05902 KS (m). I agree to comply with and to be bound by

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all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise

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that I will not disclose in any manner any information or item that is subject to this Stipulated

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Protective Order to any person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the Central

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District of California for enforcing the terms of this Stipulated Protective Order, even if such

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enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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