Strange v. Coloplast Corp.

Filing 18

ORDER. IT IS THEREFORE ORDERED that the parties' motion for a protective order and ESI protocol (ECF No. 17 ) is granted in part and denied in part.IT IS FURTHER ORDERED that the language contained in the parties' proposed ESI protoc ol (ECF No. 17 -2) is granted.IT IS FURTHER ORDERED that the language contained in the parties' proposed protective order (ECF No. 17 -1) is granted subject to modifications: See Order for details.Signed by Magistrate Judge Daniel J. Albregts on 9/15/2022. (Copies have been distributed pursuant to the NEF - YAW)

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Case 2:21-cv-00972-GMN-DJA Document 18 Filed 09/15/22 Page 1 of 4 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 *** 5 6 Dawn Strange, Plaintiff, 7 8 9 10 11 Case No. 2:21-cv-00972-GMN-DJA ORDER v. Coloplast Corp., Defendant. This matter is before the Court on the parties’ joint motion for a protective order and an 12 order governing ESI protocol (ECF No. 17). The parties request that the Court enter a protective 13 order to govern their exchange of confidential information. The parties also request that the 14 Court enter an electronically stored information (ESI) protocol to govern their exchange of 15 electronic information. The Court grants the motion in part and denies it in part. 16 The Court grants the parties request for an ESI protocol and the terms contained in their 17 proposed order. (ECF No. 17-2). However, in their proposed protective order, the parties fail to 18 state the governing standard for filing documents under seal with the Court. (ECF No. 17-1). 19 This order thus reminds counsel that there is a presumption of public access to judicial 20 files and records. A party seeking to file a confidential document under seal must file a motion to 21 seal and must comply with the Ninth Circuit’s directives in Kamakana v. City and County of 22 Honolulu, 447 F.3d 1172 (9th Cir. 2006) and Center for Auto Safety v. Chrysler Group, LLC, 809 23 F.3d 1092, 1097 (9th Cir. 2016). 24 25 26 27 28 IT IS THEREFORE ORDERED that the parties’ motion for a protective order and ESI protocol (ECF No. 17) is granted in part and denied in part. IT IS FURTHER ORDERED that the language contained in the parties’ proposed ESI protocol (ECF No. 17-2) is granted. Case 2:21-cv-00972-GMN-DJA Document 18 Filed 09/15/22 Page 2 of 4 1 2 IT IS FURTHER ORDERED that the language contained in the parties’ proposed protective order (ECF No. 17-1) is granted subject to the following modifications: 3 4 • The Court has adopted electronic filing procedures. Attorneys must file 5 documents under seal using the Court’s electronic filing procedures. See Local 6 Rule IA 10-5. Papers filed with the Court under seal must be accompanied with a 7 concurrently-filed motion for leave to file those documents under seal. See Local 8 Rule IA 10-5(a). This order specifically supersedes Section II(A)(11) of the 9 parties’ stipulated protective order. (ECF No. 17-1 at 8). 10 • The Court has approved the instant protective order to facilitate discovery 11 exchanges, but there has been no showing, and the Court has not found, that any 12 specific documents are secret or confidential. The parties have not provided 13 specific facts supported by declarations or concrete examples to establish that a 14 protective order is required to protect any specific trade secret or other confidential 15 information pursuant to Rule 26(c) or that disclosure would cause an identifiable 16 and significant harm. 17 • and explain why that standard has been met. 809 F.3d at 1097. 18 19 All motions to seal shall address the standard articulated in Ctr. for Auto Safety • Specifically, a party seeking to seal judicial records bears the burden of meeting 20 the “compelling reasons” standard, as previously articulated in Kamakana. 447 21 F.3d 1172. Under the compelling reasons standard, “a court may seal records only 22 when it finds ‘a compelling reason and articulate[s] the factual basis for its ruling, 23 without relying on hypothesis or conjecture.” Ctr. for Auto Safety, 809 F.3d at 24 1097. (quoting Kamakana, 447 F.3d at 1179). “The court must then 25 ‘conscientiously balance[ ] the competing interests of the public and the party who 26 seeks to keep certain judicial records secret.” Ctr. for Auto Safety, 809 F.3d at 27 1097. 28 Page 2 of 4 Case 2:21-cv-00972-GMN-DJA Document 18 Filed 09/15/22 Page 3 of 4 • 1 There is an exception to the compelling reasons standard where a party may satisfy 2 the less exacting “good cause” standard for sealed materials attached to a 3 discovery motion unrelated to the merits of the case. Id. “The good cause 4 language comes from Rule 26(c)(1), which governs the issuance of protective 5 orders in the discovery process: ‘The court may, for good cause, issue an order to 6 protect a party or person from annoyance, embarrassment, oppression, or undue 7 burden or expense.’” Id. (citing Fed.R.Civ.P. 26(c)). “For good cause to exist, the 8 party seeking protection bears the burden of showing specific prejudice or harm 9 will result if no protective order is granted.” Phillips v. General Motors, 307 F.3d 1206, 1210-11 (9th Cir. 2002). 10 • 11 The labels of “dispositive” and “nondispositive” will not be the determinative 12 factor for deciding which test to apply because the focal consideration is “whether 13 the motion is more than tangentially related to the merits of a case.” Ctr. for Auto 14 Safety, 809 F.3d at 1101. • 15 The fact that the Court has entered the instant stipulated protective order and that a 16 party has designated a document as confidential pursuant to that protective order 17 does not, standing alone, establish sufficient grounds to seal a filed document. See 18 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003); see 19 also Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). If 20 the sole ground for a motion to seal is that the opposing party (or non-party) has 21 designated a document as confidential, the designator shall file (within seven days 22 of the filing of the motion to seal) either (1) a declaration establishing sufficient 23 justification for sealing each document at issue or (2) a notice of withdrawal of the 24 designation(s) and consent to unsealing. If neither filing is made, the Court may 25 order the document(s) unsealed without further notice. 26 /// 27 /// 28 /// Page 3 of 4 Case 2:21-cv-00972-GMN-DJA Document 18 Filed 09/15/22 Page 4 of 4 1 • To the extent any aspect of the stipulated protective order may conflict with this 2 order or Local Rule IA 10-5, that aspect of the stipulated protective order is hereby 3 superseded with this order. 4 5 6 IT IS SO ORDERED. DATED: September 15, 2022. 7 8 DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 4 of 4

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