The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge
PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION PRELIMINARY STATEMENT AND DEFINITIONS
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties' [Proposed] Stipulated Protective Order ("Stipulation") filed on February 14, 2012, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been substantively modified by the Court's deletion of paragraphs I. and II. and amendment of paragraphs E, T, and U of the stipulated "TERMS OF THE PROTECTIVE ORDER."
The parties are expressly cautioned that the designation of any information, document, or thing as CONFIDENTIAL, CONFIDENTIAL -- ATTORNEYS' EYES ONLY, or other designation(s) used by the parties, does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Protective Order or to the parties' designation of any information, document, or thing as CONFIDENTIAL, CONFIDENTIAL -- ATTORNEYS' EYES ONLY, or other designation(s) used by the parties, is wholly insufficient to warrant a filing under seal.
There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The Court has stricken the parties' good cause statement, because a specific showing of good cause or compelling reasons (see below) for filing under seal, with proper evidentiary support and legal justification, must be made with respect to each document or item designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL --ATTORNEYS' EYES ONLY, or other designation(s) used by the parties, which a party seeks to have filed under seal. The parties' mere designation of any information, document, or thing as CONFIDENTIAL, CONFIDENTIAL --ATTORNEYS' EYES ONLY, or other designation(s) used by parties,does not --without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable -- constitute good cause.
Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought to be filed or introduced under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file documents under seal must be provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible. Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all information, documents, and things discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise.
The following definitions apply in this Protective Order:
A. The designation "CONFIDENTIAL" may be applied by a party or third party to any type of information which constitutes, contains, reveals, or reflects proprietary or confidential financial, business, personnel, or related information such as matters involving the rights to privacy of third parties such as customer, vendors, and employees, and proprietary business information known to the other party but not known by the general public (such as the identity of certain mutual customers). The designation made by a party or non-party shall be a certification to the Court and to the other parties that such information is believed to earnestly be Confidential within the meaning of this Protective Order. All involved in making such designation shall act in good faith, and such designation shall not be made to impose burden or delay on an opposing party, for tactical or other advantage in litigation, or in order to avoid embarrassment. Information designated as "Confidential" in accordance with this provision shall be treated as Confidential Information until it ceases to be covered by this Protective Order.
B. The designation "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" may be applied by a party or third party to any type of information which constitutes, contains, reveals, or reflects proprietary or confidential, financial, business, personnel, or related information which is so highly sensitive and confidential as to require the possession of such information to be limited to the counsel of record and their agents only, including, but not limited to, sources of supply, intermediate vendors such as customs brokers and shippers, financial information such as profits and losses, sales figures, rates and procedures for importation, and customer identities and purchasing habits and technical trade secrets. This designation shall be made as sparingly as possible and shall be a certification to the Court and the other parties that such information is believed to be subject to this more restrictive classification within the meaning of this Protective Order.
C. "Confidential Information" refers to all information which is subject to the designations "CONFIDENTIAL," or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" as described above.
D. "Party" means every party to this action and every director, officer, employee, and managing agent of every party to this action.
E. "Third Party" means every person or entity not a party to this action that provides information, either testimonial or documentary, for use in this litigation through discovery or otherwise.
F. "Order" means this Protective Order.
G. "Counsel" means outside counsel of record in this action, including all attorneys and employees of their respective law firms.
TERMS OF THE PROTECTIVE ORDER.
A.Materials Subject To Designation.
All depositions, originals or copies of transcripts of depositions, exhibits, answers to interrogatories, and requests for admissions; and all documents, materials, tangible things, and information obtained by inspection of files or facilities, by production of documents or by identification of documents previously gathered (hereinafter collectively referred to as "Information") may be designated by the party or a nonparty producing the Information in conformity with the definitions set forth above.
B.Treatment Of "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information.
Except as provided in Paragraphs D, E, and O below, information designated as "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" and all information derived therefrom (excluding such information as is derived lawfully from an independent source) shall not be disclosed, given, shown, made available, or communicated in any way to any person or entity other than Counsel for a party and court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this litigation. Such information shall be used only for the purposes of this litigation, and shall not directly or indirectly be used for any business, financial, or other purpose whatsoever.
C.Treatment of "Confidential" Information.
Except as provided in Paragraphs D, E, and O below, documents designated as "CONFIDENTIAL" and all information derived therefrom (excluding such information as is derived lawfully from an independent source) shall not be disclosed, given, shown, made available, or communicated in any way to any person or entity other than : (i) Counsel for a party; (ii) court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this litigation; (iii) the parties to this action and their current employees; and (iv) third-party witnesses who Counsel for a party believe have knowledge which would be reasonably calculated to lead to the discovery of admissible evidence. Before disclosure to any person or entityin categories (iii) or (iv) above, the person to whom such information is to be disclosed shall execute and deliver to the attorney of record making the disclosure a ...