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Knowles v. City of Benicia

June 29, 2010



The parties have submitted a stipulated protective order that incorporates provisions for sealing confidential documents to be filed with the court and portions of deposition transcripts and exhibits thereto when designated by a party as containing confidential information. (Amended Stipulation Regarding Confidentiality and for Protective Order (Doc. No. 13) ¶ 5.)

The parties' stipulation and proposed order permits a party to designate certain specific categories of information as confidential along with "[a]ny other INFORMATION stipulated to by the PARTIES." (Amended Stipulation ¶ 2.b.) Absent from the parties' proposed order is any provision requiring a party to obtain a court order that authorizes the sealing of a specific document or specific portions of a document. Instead, the parties' proposed order authorizes the sealing of parts of documents, entire documents, and entire categories of documents based solely on the blanket provisions contained in the parties' proposed protective order.

All documents filed with the court are presumptively public.*fn1 See San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999). Rule 26 of the Federal Rules of Civil Procedure provides a mechanism by which a party may, in appropriate circumstances, propose means of protecting the claimed confidentiality of information in certain documents filed in a specific case. Fed. R. Civ. P. 26(c). Protective orders pursuant to Rule 26(c) are intended to safeguard the parties and other persons in light of the broad discovery rights authorized in Rule 26(b). United States v. CBS, Inc., 666 F.2d 364, 368-69 (9th Cir. 1982).

Whether or not a protective order is entered in a case is subject to the discretion of the court. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (holding that Rule 26(c) confers "broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required"); Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002) (noting the district court's "broad latitude to grant protective orders to prevent disclosure of materials for many types of information"). A protective order will not be entered absent a showing of good cause. Fed. R. Civ. P. 26(c); Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130-31 (9th Cir. 2003); Phillips, 307 F.3d at 1210 ("Generally, the public can gain access to litigation documents and information produced during discovery unless the party opposing disclosure shows 'good cause' why a protective order is necessary."). A party's mere desire for a protective order does not constitute good cause to bar the public from access to litigation documents. Rather, the party seeking protection bears the burden of showing specific prejudice or harm, including, with respect to individual documents, a particular and specific need for protection. Phillips, 307 F.3d at 1210-11; San Jose Mercury News, 187 F.3d at 1102-03.

"If a court finds particularized harm will result from disclosure of information to the public, then it balances the public and private interests to decide whether a protective order is necessary." Phillips, 307 F.3d at 1211. Accordingly, a stipulation or a motion for entry of a protective order must show a particularized need for protection as to each individual document or piece of information proposed to be covered by the order, must show why the need for protection should be addressed by court order as opposed to a private agreement between or among parties, and must describe the types of documents or information eligible for protection under the order, with the description provided in general terms sufficient to reveal the nature of the types of documents or information. See San Jose Mercury News, 187 F.3d at 1103 (holding that blanket stipulated protective orders "are inherently subject to challenge and modification, as the party resisting disclosure generally has not made a particularized showing of good cause with respect to any individual document").

Just as this court will not enter a discovery order or a protective order that enables the parties to designate so much material as "confidential" that, in essence, entire case filings are sealed, the court will not approve an order giving blanket authority to the parties to designate what will be filed under seal. Similarly, the court will not approve an order that gives blanket authority to the parties to redact matters other than matters specified in Local Rule 140(a).

Here, the stipulated protective order proposed by the parties would give the parties blanket authority to file documents under seal and to seal deposition transcripts. Request for entry of the protective order as proposed will be denied without prejudice to the submission of a second amended stipulation and proposed protective order that cures this defect. The parties' second amended stipulation and proposed protective order may, of course, provide that any party may file a motion for an order permitting the filing of specific confidential material under seal or a motion for authorization to redact confidential information not relevant to the purpose of the filing of the confidential material. See Local Rule 140(b).

In addition, the court declines to adopt the parties' proposed briefing schedule for court resolution of certain disputes regarding disclosure of confidential information. (Amended Stipulation ¶ 6.) If the parties are unable to agree on the terms and conditions of a party's requested disclosure of confidential information, the party seeking such disclosure shall file and serve a notice of motion and motion pursuant to Local Rule 251.*fn2

The court also declines to approve the parties' proposed order that "[a]ny violation of the provisions set forth in this ORDER is punishable as contempt of this Court." (Amended Stipulation ¶ 11.) A party who seeks an order holding another party in contempt of court for allegedly violating a court order must file an appropriate motion.

Finally, the court declines to approve a provision that the stipulated protective order "shall not be made known to any trier of fact," as any stipulated protective order signed by the undersigned will necessarily be filed and will appear on the public docket. (Amended Stipulation ¶ 12.f.) Issues of admissibility are not properly addressed in a stipulated protective order regarding confidentiality of documents. (Id.)

For the reasons set forth above, IT IS ORDERED that the parties' June 28, 2010 Amended Stipulation Regarding Confidentiality and for Protective Order (Doc. No. ...

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