David Ettedgui v. WB Studio Enterprises Inc. et al

Filing 58

PROTECTIVE ORDER by Magistrate Judge John D. Early re 57 . (mba)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
DAVID ETTEDGUI, an individual, on
behalf of himself and on behalf of all
persons similarly situated,

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vs.
WB STUDIO ENTERPRISES INC., a
corporation; and DOES 1 through 50,
inclusive,
Defendants.

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PROTECTIVE ORDER

Plaintiff,

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Case No. 2:20-cv-08053-MCS(JDEx)

Based on the parties’ stipulation (Dkt. 57, 57-1), and for good cause shown,
the Court finds and orders as follows.

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1.

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Discovery in this action is likely to involve production of confidential,

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PURPOSES AND LIMITATIONS

proprietary or private information for which special protection from public
disclosure and from use for any purpose other than pursuing this litigation may be
warranted. The parties acknowledge that this 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 only to the limited information or

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items that are entitled to confidential treatment under the applicable legal

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principles.

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2.

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This action is likely to involve trade secrets, financial, technical and/or

GOOD CAUSE STATEMENT

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proprietary information for which special protection from public disclosure and

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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

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things, confidential business or financial information, information regarding
confidential business practices, or other confidential research, development, or
commercial information (including information implicating privacy rights of third
parties), information otherwise generally unavailable to the public, or which may
be privileged or otherwise protected from disclosure under state or federal statutes,
court rules, case decisions, or common law. Accordingly, to expedite the flow of
information, to facilitate the prompt resolution of disputes over confidentiality of
discovery materials, to adequately protect information the parties are entitled to
keep confidential, to ensure that the parties are permitted reasonable necessary uses
of such material in preparation for and in the conduct of trial, to address their
handling at the end of the litigation, and serve the ends of justice, a protective order

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for such information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in

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

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part of the public record of this case.

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3.

ACKNOWLEDGMENT OF UNDER SEAL PROCEDURE

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As set forth below, this Protective Order does not entitle parties to file

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confidential information under seal; Local Civil Rule 79-5 sets forth the procedures

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that must be followed and the standards that will be applied when a party seeks
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permission from the court to file material under seal. There is a strong presumption

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that the public has a right of access to judicial proceedings and records in civil

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cases. In connection with non-dispositive motions, good cause must be shown to

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support a filing under seal. See Kamakana v. City and County of Honolulu, 447

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

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1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576,

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577 (E.D. Wis. 1999) (even stipulated protective orders require good cause

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showing), and a specific showing of good cause or compelling reasons with proper
evidentiary support and legal justification, must be made with respect to Protected
Material that a party seeks to file under seal. The parties’ mere designation of
Disclosure or Discovery Material as confidential does not— without the
submission of competent evidence by declaration establishing that the material
sought to be filed under seal qualifies as confidential, privileged, or otherwise
protectable—constitute good cause.
Further, if a party requests sealing related to a dispositive motion or trial,
then compelling reasons, not only good cause, for the sealing must be shown, and
the relief sought shall be narrowly tailored to serve the specific interest to be
protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.

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2010). For each item or type of information, document, or thing sought to be filed

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or introduced under seal, the party seeking protection must articulate compelling

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reasons, supported by specific facts and legal justification, for the requested sealing

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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

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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 viewing,

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omitting only the confidential, privileged, or otherwise protectable portions of the
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document, shall be filed. Any application that seeks to file documents under seal in

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

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DEFINITIONS

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4.1

Action: David Ettedgui v. WB Studio Enterprises Inc., pending before

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the United States District Court for the Central District, Case Number 2:20-cv-

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08053-MCS (JDEx).

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4.2

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
4.3

“CONFIDENTIAL” Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
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Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
4.5

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

items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
4.6

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery.

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4.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve

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as an expert witness or as a consultant in this Action.

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4.8

House Counsel: attorneys employed by a party to this Action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.

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4.9

Non-Party: any natural person, partnership, corporation, association or

other legal entity not named as a Party to this action.

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4.10 Outside Counsel of Record: attorneys who are not employees of a

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party to this Action but are retained to represent a party to this Action and have

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appeared in this Action on behalf of that party or are affiliated with a law firm that

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has appeared on behalf of that party, and includes support staff.

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4.11 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).
4.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
4.13 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
4.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
4.15

Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.

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5.

SCOPE

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The protections conferred by this Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the

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trial judge and other applicable authorities. This Order does not govern the use of

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Protected Material at trial.

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6.

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Once a case proceeds to trial, information that was designated as

DURATION

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CONFIDENTIAL or maintained pursuant to this protective order used or

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introduced as an exhibit at trial becomes public and will be presumptively

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available to all members of the public, including the press, unless compelling
reasons supported by specific factual findings to proceed otherwise are made to the
trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
(distinguishing “good cause” showing for sealing documents produced in
discovery from “compelling reasons” standard when merits-related documents are
part of court record). Accordingly, the terms of this protective order do not extend
beyond the commencement of the trial.
7.

DESIGNATING PROTECTED MATERIAL

7.1

Exercise of Restraint and Care in Designating Material for
Protection. Each Party or Non-Party that designates information or

items for protection under this Order must take care to limit any such designation

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

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Party must designate for protection only those parts of material, documents, items

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or oral or written communications that qualify so that other portions of the

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material, documents, items or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to

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impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions.

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

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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7.2

Manner and Timing of Designations. Except as otherwise provided in

this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material
that qualifies for protection under this Order must be clearly so designated before
the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
contains protected material. If only a portion 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 markings in the margins).
A Party or Non-Party that makes original documents available for

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inspection need not designate them for protection until after the inspecting Party

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has indicated which documents it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL legend” to each page that contains Protected Material.

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If only a portion of the material on a page qualifies for protection, the Producing
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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b) for testimony given in depositions that the Designating Party

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identifies the Disclosure or Discovery Material on the record, before the close of

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the deposition all protected testimony.

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(c) for information produced in some form other than documentary
and for any other tangible items, that the Producing Party affix in a prominent
place on the exterior of the container or containers in which the information is
stored the legend “CONFIDENTIAL.” If only a portion or portions of the
information warrants protection, the Producing Party, to the extent practicable,
shall identify the protected portion(s).
7.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such
material. Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
8.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

8.1.

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

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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8.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-1 et seq.
8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
joint stipulation pursuant to Local Rule 37-2.
8.4 The burden of persuasion in any such challenge proceeding shall be on
the Designating Party. Frivolous challenges, and those made for an improper
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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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9.

ACCESS TO AND USE OF PROTECTED MATERIAL

9.1 Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of section 15 below (FINAL
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.
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 Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b) the officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this Action;

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(c) Experts (as defined in this Order) of the Receiving Party to whom
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disclosure is reasonably necessary for this Action and who have signed an

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Acknowledgment and Agreement to Be Bound.

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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

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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signed an Acknowledgment and Agreement to Be Bound;

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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 disclosure is reasonably necessary provided: (1) the deposing
party requests that the witness sign an Acknowledgment and Agreement to be
Bound; and (2) they will not be permitted to keep any confidential information
unless they sign the Acknowledgment and Agreement to Be Bound, unless
otherwise agreed by the Designating Party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected
Material may be separately bound by the court reporter and may not be disclosed
to anyone except as permitted under this Protective Order; and
(i) any mediators or settlement officers and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.
10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be

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pursued by the Designating Party whose Protected Material may be affected. If the

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Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action
as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this Action
to disobey a lawful directive from another court.
11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
BE PRODUCED IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by

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a Non-Party in this Action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is protected

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b) In the event that a Party is required, by a valid discovery request,

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to produce a Non-Party’s confidential information in its possession, and the Party

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is subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the

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Protective Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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

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(c) If the Non-Party fails to seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive
to the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that
is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party
shall bear the burden and expense of seeking protection in this court of its
Protected Material.
12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute an Acknowledgment

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an Agreement to Be Bound.

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13.

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INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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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

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production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
of a communication or information covered by the attorney-client privilege or
work product protection, the parties may incorporate their agreement in the
stipulated protective order submitted to the court.
14.

MISCELLANEOUS

14.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.
14.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order, no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in

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this Protective Order. Similarly, no Party waives any right to object on any ground

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to use in evidence of any of the material covered by this Protective Order.

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

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Protected Material must comply with Local Civil Rule 79-5. Protected Material

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may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material. If a Party’s request to file Protected Material under

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seal is denied by the court, then the Receiving Party may file the information in the

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public record unless otherwise instructed by the court.

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15.

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After the final disposition of this Action, as defined in paragraph 6, within

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60 days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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

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Protected Material. Whether the Protected Material is returned or destroyed, the

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FINAL DISPOSITION

Receiving Party must submit a written certification to the Producing Party (and, if
not the same person or entity, to the 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, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel
are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition
and trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 6 (DURATION).

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16.

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Any violation of this Order may be punished by appropriate measures

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VIOLATION

including, without limitation, contempt proceedings and/or monetary sanctions.
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: April 27, 2021

_________________________
JOHN D. EARLY
United States Magistrate Judge

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