Kierra Thomas v. Nissan North America, Inc. et al

Filing 23

PROTECTIVE ORDER by Magistrate Judge John D. Early re Stipulation for Protective Order 22 . (see document for details) (hr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

9
10
11
12
13
14
15
16
17

KIERRA THOMAS, an individual,

) CASE NO.: 8:23-cv-00164 FWS (JDEx)
)
Plaintiff,
)
) STIPULATED PROTECTIVE ORDER
vs.
)
)
NISSAN NORTH AMERICA, INC., )
a California Corporation, and DOES 1 )
through 10, inclusive,
)
)
Defendants.
)

18
19

1.

20

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

21

proprietary or private information for which special protection from public

22

disclosure and from use for any purpose other than pursuing this litigation may be

23

warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter

24

the following Stipulated Protective Order. The parties acknowledge that this Order

25

does not confer blanket protections on all disclosures or responses to discovery and

26

that the protection it affords from public disclosure and use extends only to the

27

limited information or items that are entitled to confidential treatment under the

28

applicable legal principles.

PURPOSES AND LIMITATIONS

-1STIPULATED PROTECTIVE ORDER

1

2.

2

This action is likely to involve other valuable research, development,

3

commercial, financial, technical and/or proprietary information for which special

4

protection from public disclosure and from use for any purpose other than

5

prosecution of this action is warranted. Such confidential and proprietary materials

6

and information consist of, among other things, confidential business or financial

7

information, information regarding confidential business practices, or other

8

confidential research, development, or commercial information (including

9

information implicating privacy rights of third parties), information otherwise

10

generally unavailable to the public, or which may be privileged or otherwise

11

protected from disclosure under state or federal statutes, court rules, case decisions,

12

or common law. Accordingly, to expedite the flow of information, to facilitate the

13

prompt resolution of disputes over confidentiality of discovery materials, to

14

adequately protect information the parties are entitled to keep confidential, to ensure

15

that the parties are permitted reasonable necessary uses of such material in

16

preparation for and in the conduct of trial, to address their handling at the end of the

17

litigation, and serve the ends of justice, a protective order for such information is

18

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

19

designated as confidential for tactical reasons and that nothing be so designated

20

without a good faith belief that it has been maintained in a confidential, non-public

21

manner, and there is good cause why it should not be part of the public record of this

22

case.

23
24

3.

GOOD CAUSE STATEMENT

ACKNOWLEDGMENT OF UNDER SEAL FILING
PROCEDURE

25

The parties further acknowledge, as set forth in Section 14.3, below, that this

26

Stipulated Protective Order does not entitle them to file confidential information

27

under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

28

and the standards that will be applied when a party seeks permission from the court
-2STIPULATED PROTECTIVE ORDER

1

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

2

of access to judicial proceedings and records in civil cases. In connection with non-

3

dispositive motions, good cause must be shown to support a filing under seal. See

4

Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),

5

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

6

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

7

stipulated protective orders require good cause showing), and a specific showing of

8

good cause or compelling reasons with proper evidentiary support and legal

9

justification, must be made with respect to Protected Material that a party seeks to

10

file under seal. The parties’ mere designation of Disclosure or Discovery Material

11

as CONFIDENTIAL does not— without the submission of competent evidence by

12

declaration, establishing that the material sought to be filed under seal qualifies as

13

confidential, privileged, or otherwise protectable—constitute good cause.

14

Further, if a party requests sealing related to a dispositive motion or trial, then

15

compelling reasons, not only good cause, for the sealing must be shown, and the

16

relief sought shall be narrowly tailored to serve the specific interest to be protected.

17

See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For

18

each item or type of information, document, or thing sought to be filed or introduced

19

under seal, the party seeking protection must articulate compelling reasons,

20

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

21

Again, competent evidence supporting the application to file documents under seal

22

must be provided by declaration.

23

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

24

its entirety will not be filed under seal if the confidential portions can be redacted. If

25

documents can be redacted, then a redacted version for public viewing, omitting only

26

the confidential, privileged, or otherwise protectable portions of the document, shall

27

be filed. Any application that seeks to file documents under seal in their entirety

28

should include an explanation of why redaction is not feasible.
-3STIPULATED PROTECTIVE ORDER

1

4.

DEFINITIONS

2

4.1

Action: this pending federal lawsuit.

3

4.2

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

4
5

designation of information or items under this Order.
4.3

“CONFIDENTIAL” Information or Items: information (regardless of

6

how it is generated, stored or maintained) or tangible things that qualify for

7

protection under Federal Rule of Civil Procedure 26(c), and as specified above in

8

the Good Cause Statement.

9
10
11

4.4

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

12

items that it produces in disclosures or in responses to discovery as

13

“CONFIDENTIAL.”

14

4.6

Disclosure or Discovery Material: all items or information, regardless

15

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

16

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

17

generated

18

4.7

in

disclosures

or

responses

to

discovery.

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

19

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

20

an expert witness or as a consultant in this Action.

21

4.8

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

22

House Counsel does not include Outside Counsel of Record or any other outside

23

counsel.

24
25

4.9

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

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

26

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

27

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

28

in this Action on behalf of that party or are affiliated with a law firm that has
-4STIPULATED PROTECTIVE ORDER

1

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

2

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

3

employees, consultants, retained experts, and Outside Counsel of Record (and their

4

support staffs).

5
6

4.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

7

4.13 Professional Vendors: persons or entities that provide litigation support

8

services (e.g., photocopying, videotaping, translating, preparing exhibits or

9

demonstrations, and organizing, storing, or retrieving data in any form or medium)

10
11
12
13
14

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.

15

5.

16

The protections conferred by this Stipulation and Order cover not only

17

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

18

extracted from Protected Material; (2) all copies, excerpts, summaries, or

19

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

20

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

21

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

22

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

23

Protected Material at trial.

SCOPE

24

6.

25

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

26

CONFIDENTIAL or maintained pursuant to this protective order used or introduced

27

as an exhibit at trial becomes public and will be presumptively available to all

28

members of the public, including the press, unless compelling reasons supported by

DURATION

-5STIPULATED PROTECTIVE ORDER

1

specific factual findings to proceed otherwise are made to the trial judge in advance

2

of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

3

showing for sealing documents produced in discovery from “compelling reasons”

4

standard when merits-related documents are part of court record). Accordingly, the

5

terms of this protective order do not extend beyond the commencement of the trial.

6

7.

DESIGNATING PROTECTED MATERIAL

7

7.1

Exercise of Restraint and Care in Designating Material for

8

Protection. Each Party or Non-Party that designates information or

9

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

10

specific material that qualifies under the appropriate standards. The Designating

11

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

12

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

13

documents, items or communications for which protection is not warranted are not

14

swept unjustifiably within the ambit of this Order.

15

Mass, indiscriminate or routinized designations are prohibited. Designations

16

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

17

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

18

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

19

Party to sanctions.

20

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

21

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

22

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

23

7.2

Manner and Timing of Designations. Except as otherwise provided in

24

this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material

25

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

26

the material is disclosed or produced.

27
28

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
-6STIPULATED PROTECTIVE ORDER

1

documents, but excluding transcripts of depositions or other pretrial or trial

2

proceedings), that the Producing Party affix at a minimum, the legend

3

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

4

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

5

protection, the Producing Party also must clearly identify the protected portion(s)

6

(e.g., by making appropriate markings in the margins).

7

makes original documents available for inspection need not designate them for

8

protection until after the inspecting Party has indicated which documents it would

9

like copied and produced. During the inspection and before the designation, all of

10

the material made available for inspection shall be deemed “CONFIDENTIAL.”

11

After the inspecting Party has identified the documents it wants copied and

12

produced, the Producing Party must determine which documents, or portions

13

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

14

documents, the Producing Party must affix the “CONFIDENTIAL legend” to each

15

page that contains Protected Material. If only a portion of the material on a page

16

qualifies for protection, the Producing Party also must clearly identify the protected

17

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

A Party or Non-Party that

18

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

19

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

20

deposition all protected testimony.

21

(c) for information produced in other than documentary form and for

22

any other tangible items, that the Producing Party affix in a prominent place on the

23

exterior of the container(s) in which the information is stored the legend

24

“CONFIDENTIAL.” If only a portion of the information warrants protection, the

25

Producing Party, to the extent practicable, shall identify the protected portion(s).

26

7.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

27

failure to designate qualified information or items does not, standing alone, waive

28

the Designating Party’s right to secure protection under this Order for such material.
-7STIPULATED PROTECTIVE ORDER

1

Upon timely correction of a designation, the Receiving Party must make reasonable

2

efforts to assure the material is treated in accordance with this Order.

3

8.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

4

8.1.

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

5

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

6

Scheduling Order.

7
8
9
10

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.

11

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

12

Designating Party. Frivolous challenges, and those made for an improper purpose

13

(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

14

expose the Challenging Party to sanctions. Unless the Designating Party has waived

15

or withdrawn the confidentiality designation, all parties shall continue to afford the

16

material in question the level of protection to which it is entitled under the Producing

17

Party’s designation until the Court rules on the challenge.

18
19
20
21
22
23
24
25
26
27
28

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.
-8STIPULATED PROTECTIVE ORDER

1

9.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

2

otherwise ordered by the court or permitted in writing by the Designating Party, a

3

Receiving Party may disclose any information or item designated

4

“CONFIDENTIAL” only to:

5

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

6

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

7

necessary to disclose the information for this Action;

8
9

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

10

(c) Experts (as defined in this Order) of the Receiving Party to whom

11

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

12

“Acknowledgment and Agreement to Be Bound” (Exhibit A);

13

(d) the court and its personnel;

14

(e) court reporters and their staff;

15

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

16

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

17

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

18
19

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

20

(h) during their depositions, witnesses, and attorneys for witnesses, in

21

the Action to whom disclosure is reasonably necessary provided: (1) the deposing

22

party requests that the witness sign the form attached as Exhibit A hereto; and (2)

23

they will not be permitted to keep any confidential information unless they sign the

24

“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

25

agreed by the Designating Party or ordered by the court. Pages of transcribed

26

deposition testimony or exhibits to depositions that reveal Protected Material may

27

be separately bound by the court reporter and may not be disclosed to anyone except

28

as permitted under this Stipulated Protective Order; and
-9STIPULATED PROTECTIVE ORDER

(i) any mediators or settlement officers and their supporting personnel,

1
2
3

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

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED IN OTHER LITIGATION

4
5

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

6

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

7

“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification

8
9

shall include a copy of the subpoena or court order;

10

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

11

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

12

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

13

a copy of this Stipulated Protective Order; and

14

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

15

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

16

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

17

subpoena or court order shall not produce any information designated in this action

18

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

19

or order issued, unless the Party has obtained the Designating Party’s permission.

20

The Designating Party shall bear the burden and expense of seeking protection in

21

that court of its confidential material and nothing in these provisions should be

22

construed as authorizing or encouraging a Receiving Party in this Action to disobey

23

a lawful directive from another court.

24

11.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO

25

BE PRODUCED IN THIS LITIGATION

26

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

27

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

28

produced by Non-Parties in connection with this litigation is protected by the
- 10 STIPULATED PROTECTIVE ORDER

1

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

2

construed as prohibiting a Non-Party from seeking additional protections.

3

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

4

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

5

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

6

confidential information, then the Party shall:

7

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

8

that some or all of the information requested is subject to a confidentiality agreement

9

with a Non-Party;

10

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

11

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

12

specific description of the information requested; and

13
14

(3) make the information requested available for inspection by the NonParty, if requested.

15

(c) If the Non-Party fails to seek a protective order from this court

16

within 14 days of receiving the notice and accompanying information, the Receiving

17

Party may produce the Non-Party’s confidential information responsive to the

18

discovery request. If the Non-Party timely seeks a protective order, the Receiving

19

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

20

the confidentiality agreement with the Non-Party before a determination by the

21

court. Absent a court order to the contrary, the Non-Party shall bear the burden and

22

expense of seeking protection in this court of its Protected Material.

23

12.

24

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

25

Protected Material to any person or in any circumstance not authorized under this

26

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

27

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

28

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

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

- 11 STIPULATED PROTECTIVE ORDER

1

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

2

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

3

Agreement to Be Bound” attached hereto as Exhibit A.

4

13.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

5
6

When a Producing Party gives notice to Receiving Parties that certain

7

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

8

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil\

9

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

10

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

11

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

12

parties reach an agreement on the effect of disclosure of a communication or

13

information covered by the attorney-client privilege or work product protection, the

14

parties may incorporate their agreement in the stipulated protective order submitted

15

to the court.

16

14.

17

14.1 Right to Further Relief. Nothing in this Order abridges the right of any

18
19

MISCELLANEOUS

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

20

Protective Order, no Party waives any right it otherwise would have to object to

21

disclosing or producing any information or item on any ground not addressed in this

22

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

23

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

24

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

25

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

26

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

27

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

28

is denied by the court, then the Receiving Party may file the information in the public
- 12 STIPULATED PROTECTIVE ORDER

1

record unless otherwise instructed by the court.

2

15.

FINAL DISPOSITION

3

After the final disposition of this Action, as defined in paragraph 6, within 60

4

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

5

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

6

this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

7

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

8

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

9

Party must submit a written certification to the Producing Party (and, if not the same

10

person or entity, to the Designating Party) by the 60-day deadline that (1) identifies

11

(by category, where appropriate) all the Protected Material that was returned or

12

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

13

abstracts, compilations, summaries or any other format reproducing or capturing any

14

of the Protected Material. Notwithstanding this provision, Counsel are entitled to

15

retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

16

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

17

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

18

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

19

constitute Protected Material remain subject to this Protective Order as set forth in

20

Section 6 (DURATION).

21

16.

22

Any violation of this Order may be punished by appropriate measures

23

VIOLATION

24

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

25

DATED: August 15, 2023

26
27
28

_________________________________
JOHN D. EARLY
United States Magistrate Judge

- 13 STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I,

[print

or

type

full

name],

of

4

[print or type full address], declare under penalty

5

of perjury that I have read in its entirety and understand the Stipulated Protective

6

Order that was issued by the United States District Court for the Central District of

7

California in Case No. 8:23-cv-00164 FWS (JDEx). I agree to comply with and to

8

be bound by all the terms of this Stipulated Protective Order and I understand and

9

acknowledge that failure to so comply could expose me to sanctions and punishment

10

in the nature of contempt. I solemnly promise that I will not disclose in any manner

11

any information or item that is subject to this Stipulated Protective Order to any

12

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

13

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

14

for the Central District of California for the purpose of enforcing the terms of this

15

Stipulated Protective Order, even if such enforcement proceedings occur after

16

termination of this action. I hereby appoint

17

name] of

18

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

19

or any proceedings related to enforcement of this Stipulated Protective Order.

20

Date:

21

City and State where sworn and signed:

[print or type full address and telephone

22
23

Printed name:

24
25

[print or type full

Signature:

26
27
28
- 14 STIPULATED PROTECTIVE ORDER