Monterey Mushrooms, Inc. v. Federal Insurance Company

Filing 27

Order by Magistrate Judge Virginia K DeMarchi denying without prejudice 26 Stipulation. (vkdlc1S, COURT STAFF) (Filed on 8/30/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MONTEREY MUSHROOMS, INC.,

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Plaintiff,

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v.

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FEDERAL INSURANCE COMPANY,

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United States District Court
Northern District of California

Case No.18-cv-01439-BLF (VKD)

Defendant.

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ORDER DENYING WITHOUT
PREJUDICE STIPULATED
PROTECTIVE ORDER
Re: Dkt. No. 26

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On August 21, 2018, the parties filed a proposed Stipulated Protective Order, which was

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referred to the undersigned magistrate judge for review. Dkt. Nos. 26, 19.

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Some of the provisions proposed to be included in the protective order appear to be

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inconsistent with the Civil Local Rules, guidelines, or other policies of this Court. Before entering

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the proposed protective order, the Court requires modifications to the proposed order and/or an

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explanation on the following points, before the order may be entered:
Section 5. The parties’ proposed order omits Section 5.1, “Exercise of Restraint and Care

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in Designating Material for Protection,” from this Court’s Model Protective Order for Standard

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Litigation1. The model provision prohibits mass, indiscriminate, or routinized designations of

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information and documents as “Confidential” or “Highly Confidential.” The model provision is

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consistent with this Court’s policy on filing documents under seal pursuant to Civil Local Rule 79-

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5, particularly those that have been designated as confidential or subject to a protective order

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under Local Rule 79-5(e). See Civ. L.R. 79-5(b) commentary (“As a public forum, the Court has a

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Available at https://cand.uscourts.gov/model-protective-orders.

policy of providing to the public full access to documents filed with the Court. . . . Proposed

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protective orders, in which parties establish a procedure for designating and exchanging

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confidential information, must incorporate the procedures set forth in this rule if, in the course of

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proceedings in the case, a party proposes to submit sealable information to the Judge.”). The mere

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designation of documents as “confidential” pursuant to a protective order alone does not support

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sealing those documents. Civ. L.R. 79-5(d)(1)(A) (“Reference to a stipulation or protective order

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that allows a party to designate certain documents as confidential is not sufficient to establish that

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a document, or portions thereof, are sealable.”); San Jose Mercury News v. United States Dist. Ct.,

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187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established that the fruits of pretrial discovery are,

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in the absence of a court order to the contrary, presumptively public.”). The Court encourages the

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United States District Court
Northern District of California

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parties to include a provision, like the model provision, in their proposed protective order. If the

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parties do not wish to include such a provision, they shall briefly explain the reason for omitting it.

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Section 8. The parties’ proposed order does not include a “Section 8.” However, Section

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10 includes a reference to “paragraphs 8 and 9 above.” Dkt. No. 26 at 5. If the parties intended to

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include a Section 8, or if Section 10 contains an error, the parties should re-file a corrected

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proposed order.

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Section 10. The parties’ proposed order does not include the Court and its personnel

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among those to whom the parties may disclose and provide copies of any materials designated as

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“Confidential” or “Highly Confidential – Outside Counsel’s Eyes Only.” This omission should be

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corrected, as the Court and its personnel should not be required to sign Exhibit A to the proposed

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order in order to have access to material that is designated under the protective order. See Model

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Protective Order at Section 7.2(d).

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Section 10.3. The parties’ proposed order permits disclosure of materials designated as

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“Confidential” or “Highly Confidential – Outside Counsel’s Eyes Only” to “any other persons

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with prior authorization of the Court.” Dkt. No. 26 at 6. The Court does not expect to receive a

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request for authorization every time the parties wish to disclose designated materials to persons

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not already encompassed by the protective order; the parties may so agree without involving the

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Court. If, however, the parties are unable to agree about whether a particular person should be
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permitted to view designated protected material, then they may bring that dispute before the Court

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following the procedure outlined in the undersigned’s Standing Order re Civil Cases. The

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proposed order should be modified accordingly.

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Section 12. The parties’ proposed order permits a non-party to “intervene in this Action to

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enforce the provisions of this Protective Order as if they were a Party.” Id. at 7. This provision

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appears inconsistent with the preceding text of Section 12, which extends the benefits and

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protections of the stipulated protective order to non-parties without requiring them to formally

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intervene under Federal Rule of Civil Procedure 24. The parties shall either modify this Section

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12 or provide a brief explanation for why they believe it is appropriate to require non-parties to

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United States District Court
Northern District of California

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intervene to enforce provisions of the protective order.
Section 14. The parties’ proposed order omits the Model Protective Order’s Sections 12.1

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and 12.2. The rights discussed in Sections 12.1 and 12.2 of the Model Protective Order apply

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regardless of whether they are explicitly mentioned in a protective order. If, however, the parties

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intend to waive those rights, they should so advise the Court.

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For these reasons, the Court DENIES WITHOUT PREJUDICE the parties’ stipulated

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protective order. The parties may either submit a revised stipulated protective order that addresses

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the matters noted above, or the parties may submit a joint discovery letter brief (in lieu of a

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noticed motion) that explains why the proposed provisions are appropriate for the case and

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consistent with the Court’s rules, guidelines, and policies governing protective orders.

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IT IS SO ORDERED.
Dated: August 30, 2018

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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