Scott-George v. PVH Corporation

Filing 30

ORDER signed by Magistrate Judge Dale A. Drozd on 7/30/2013 ORDERING #28 that the parties' request for entry of the proposed stipulated protective order is DENIED without prejudice. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JODI SCOTT-GEORGE, individually and
on behalf of other members of the general
public similarly situated,

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Plaintiff,

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No. 2:13-cv-0441 TLN DAD

ORDER

v.
PHV CORPORATION, a Delaware
Corporation,

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Defendant.

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On July 25, 2013, the parties submitted a proposed stipulated protective order

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regarding the use of confidential information for the court’s consideration. That proposed

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stipulated protective order provides that any documents filed with the Court shall be filed under

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seal, pursuant to applicable court procedures, and accompanied by a motion to seal, in an

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envelope marked “CONFIDENTIAL-Filed Under Seal Pursuant to Court Order.” (Proposed

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Stipulated Protective Order filed July 25, 2013 (Doc. No. 28-115) at 121.) The proposed

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stipulated protective order, however, fails to reference the applicable Local Rules or comply with

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the procedures set forth therein.

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Citations such as this one are to the page number reflected on the court’s CMECF system and
not to the page number assigned by the parties.
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All documents filed with the court are presumptively public. See San Jose

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Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-

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established that the fruits of pretrial discovery are, in the absence of a court order to the contrary,

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presumptively public.”). Rule 26 of the Federal Rules of Civil Procedure provides a mechanism

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by which the parties may, in appropriate circumstances, propose means of protecting the claimed

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confidentiality of information in certain documents filed in a specific case. FED. R. CIV. P. 26(c).

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Protective orders pursuant to Rule 26(c) are intended to safeguard the parties and other persons in

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light of the broad discovery rights authorized in Rule 26(b). United States v. CBS, Inc., 666 F.2d

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364, 368-69 (9th Cir. 1982).

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Whether or not a protective order is entered in any case is subject to the discretion

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of the court. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (holding that Rule 26(c)

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confers “broad discretion on the trial court to decide when a protective order is appropriate and

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what degree of protection is required”); Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th

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Cir. 2002) (noting the district court’s “broad latitude to grant protective orders to prevent

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disclosure of materials for many types of information”). A protective order will not be entered

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absent a showing of good cause. FED. R. CIV. P. 26(c); Foltz v. State Farm Mut. Auto. Ins. Co.,

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331 F.3d 1122, 1130-31 (9th Cir. 2003); Phillips, 307 F.3d at 1210 (“Generally, the public can

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gain access to litigation documents and information produced during discovery unless the party

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opposing disclosure shows ‘good cause’ why a protective order is necessary.”).

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A party’s desire for a protective order does not constitute good cause to bar the

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public from access to litigation documents. Rather, the party seeking protection bears the burden

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of showing specific prejudice or harm, including, with respect to individual documents, particular

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and specific need for protection. Phillips, 307 F.3d at 1210-11; San Jose Mercury News, 187

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F.3d at 1102-03. “If a court finds particularized harm will result from disclosure of information

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to the public, then it balances the public and private interests to decide whether a protective order

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is necessary.” Phillips, 307 F.3d at 1211.

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Stipulations and motions for entry of a protective order must (1) show a
particularized need for protection as to each individual document or piece of information
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proposed to be covered by the order, (2) show why the need for protection should be addressed by

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court order, as opposed to a private agreement between or among parties, and (3) describe the

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types of documents or information eligible for protection under the order, with the description

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provided in general terms sufficient to reveal the nature of the types of documents or information.

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See San Jose Mercury News, 187 F.3d at 1103 (holding that blanket stipulated protective orders

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“are inherently subject to challenge and modification, as the party resisting disclosure generally

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has not made a particularized showing of good cause with respect to any individual document”);

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Local Rule 141.1.

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Here, the Court will not approve an order that fails to reference, or comply with,

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the procedures relating to the sealing of documents as set forth in Local Rules. In this regard, the

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parties are advised that documents that are the subject of a protective order may be filed under

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seal only if a sealing order is first obtained. See Local Rule 141.1. A party seeking to obtain a

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sealing order shall comply with the provisions of Local Rule 141, which sets forth a specific

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procedure for seeking a sealing order. After compliance with Local Rule 141, the court will issue

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an order granting or denying the request to seal.
Moreover, it appears that the parties’ proposed stipulated protective order

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contemplates that the Court shall retain jurisdiction over the enforcement of the stipulated

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protective order even after this lawsuit terminates. (Proposed Stipulated Protective Order filed

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July 25, 2013 (Doc. No. 28-1) at19.) Local Rule 141.1(f), however, provides that once the Clerk

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has closed an action, unless otherwise ordered, the Court will not retain jurisdiction over

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enforcement of the terms of any protective order filed in that action. In their proposed protective

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order the parties have not addressed why the Court should deviate from this local rule of court in

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this case.
The parties’ request for entry of the proposed stipulated protective order will,

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therefore, be denied without prejudice to the submission of a stipulated protective order that cures

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these defects. The parties may, of course, agree that specific documents to be filed with the court

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that disclose information derived from documents containing confidential information shall be

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submitted to the court either in redacted form in conformity with Local Rule 140 or with a request

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to seal documents and proposed sealing order in conformity with Local Rules 141 and 141.1.

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Accordingly, IT IS ORDERED that the parties’ July 25, 2013 request for entry of

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the proposed stipulated protective order (Doc. No. 28) is denied without prejudice.

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Dated: July 30, 2013

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DDAD:6
Ddad1\orders.civil\george0441.stip.protord.den.doxc

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