United States District Court, S.D. California
SONNY LOW, J.R. EVERETT and JOHN BROWN, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
TRUMP UNIVERSITY, LLC, a New York Limited Liability Company, and DONALD J. TRUMP, Defendants. ART COHEN, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
DONALD J. TRUMP, Defendant.
GRANTING DEFENDANT’S MOTION TO AMEND PROTECTIVE ORDER
DENYING MEDIA INTERVENORS’ MOTION TO INTERVENE AND FOR
AN ORDER MODIFYING STIPULATED PROTECTIVE ORDER GRANTING IN
PART AND DENYING IN PART PLAINTIFF’S EX PARTE
APPLICATION FOR LEAVE TO FILE ELECTRONIC EXHIBITS [ECF Nos.
485, 230, 233, 238]
Gonzalo P. Curiel United States District Judge
the Court are three related motions concerning the public
dissemination of the videotaped depositions of Defendant
Donald J. Trump (“Defendant”) taken on December
10, 2015, and January 21, 2016.
before the Court is non-party press organizations Cable News
Network, Inc. (“CNN”); CBS Broadcasting Inc.; CBS
Interactive Inc.; Tribune Publishing Company; NBCUniversal
Media, LLC; ABC, Inc.; The New York Times Company; and WP
Company LLC d/b/a The Washington Post’s (collectively,
the “Media Intervenors”) motion, in Cohen v.
Trump, No. 3:13-cv-02519-GPC-WVG
(“Cohen”), to intervene and for an order
modifying the stipulated First Amended Protective Order to
remove the confidentiality designations to portions of the
videotaped depositions. Motion of Media Intervenors to
Intervene and for an Order Modifying Stipulated Protective
Order (“Media Mot.”), Cohen, ECF No.
before the Court is Defendants Trump University, LLC
(“TU”) and Donald J. Trump’s (collectively,
“Defendants”) motion, in Cohen and the
related case Low v. Trump University, No.
3:10-cv-00940-GPC-WVG (“Low”), to amend
the protective order operative in both cases to (1) prohibit
the filing of any videotaped deposition, unless under seal;
and (2) bar the dissemination of any videotaped deposition.
Defendant’s Motion to Amend Protective Order
(“Def. Mot.”), Low, ECF No.
485/Cohen, ECF No. 238.
before the Court is Plaintiff’s June 9, 2016 ex
parte application for leave to file electronic exhibits
(“Pl. App.”). Cohen, ECF No. 230.
motions have been fully briefed. See
Defendants’ Response to Media Intervenors’ Motion
to Intervene and for an Order Modifying Stipulated Protective
Order (“Def. Resp.”), Cohen, ECF No.
251; Media Intervenors’ Consolidated Reply in Support
of Motion to Intervene and for Order Modifying Stipulated
Protective Order and Opposition to Defendants’ Motion
to Amend Protective Order (“Media Reply”),
Cohen, ECF No. 253; Plaintiffs’ Response in
Opposition to Defendants’ Motion to Amend the
Protective Order (“Pl. Resp.”), Low, ECF
No. 492/Cohen, ECF No. 254; Defendants’
Consolidated Reply in Support of Motion to Amend Protective
Order (“Def. Reply”), Low, ECF No.
494/Cohen, ECF No. 255; Defendant’s Response
in Opposition to Plaintiff’s Ex Parte
Application for Leave to File Electronic Exhibits
(“Def. App. Resp.”), Cohen, ECF No. 235;
Plaintiff’s Reply to Defendant’s Opposition to
Plaintiff’s Ex Parte Application for Leave to
File Electronic Exhibits (“Pl. App. Reply”),
Cohen, ECF No. 236. A hearing on the motions was
held on July 13, 2016. Low, ECF No.
497/Cohen, ECF No. 261.
consideration of the moving papers, oral argument, and the
applicable law, and for the following reasons, the Court
DENIES Media Intervenors’ motion to intervene and for
an order modifying the stipulated protective order; GRANTS
Defendants’ motion to amend the protective order; and
GRANTS IN PART and DENIES IN PART Plaintiff’s ex
parte application for leave to file exhibits.
November 7, 2011, Magistrate Judge Gallo granted the
parties’ joint motion for a protective order in the
Low case. Low, ECF No. 91. On March 21,
2014, after Plaintiff Art Cohen filed his case, Judge Gallo
granted the parties’ joint motion to amend the
Low protective order so as to govern both cases.
First Amended Protective Order (“Protective
Order”), Low, ECF No. 316.
the terms of the Protective Order, the parties may
unilaterally designate as confidential a “deposition or
portions of the deposition” without permission from the
Court, and without a particularized showing of good cause.
See Id. at 3 (“[T]he deposition or portions of
the deposition must be designated as containing Confidential
Information subject to the provisions of this Order; such
designation must be made on the record whenever possible, but
a party may designate portions of depositions as containing
Confidential Information after transcription of the
proceedings; [A] party will have until fourteen (14) days
after receipt of the deposition transcript to inform the
other party or parties to the action of the portions of the
transcript to be designated “CONFIDENTIAL” or
“CONFIDENTIAL - FOR COUNSEL ONLY.” (second
alteration in original)). The Protective Order prohibits
parties from filing a deposition with the court that was
designated as “confidential” “unless it can
be accomplished under seal, identified as being subject to
this Order, and protected from being opened except by order
of this Court.” Id. Moreover, the Protective
Order restricts parties receiving “confidential”
information from disclosing it “to anyone other than
those persons designated within this order . . . .”
December 10, 2015, and January 21, 2016, Plaintiff Cohen
(“Plaintiff”) deposed Defendant in the
Cohen case. Cohen, ECF Nos. 157, 172.
Defendant initially sought to designate the entirety of the
deposition transcripts as confidential, but withdrew his
designations following a challenge from Plaintiff except as
to three categories of information: (1) Defendant’s
past praise of public figures; (2) a licensing agreement
between TU and a third party; and (3) Defendant’s
profits from TU. Cohen, ECF No. 172 at 1. On March
14, 2016, Judge Gallo found that the first category was not
entitled to a confidential designation, but upheld the
designation for the second category and a portion of the
third. Id. at 5, 7, 9. In accordance with this
finding, Judge Gallo ordered the de-designation of
approximately 29 pages of the deposition transcript,
permitting Defendant to maintain confidentiality designations
for only approximately three pages of the deposition
transcript, as well as for certain numeric figures.
Id. at 6-9.
3, 2016, Plaintiff Cohen submitted his opposition to
Defendant’s motion for summary judgment in the
Cohen case, including as exhibits 48 video files of
discrete portions of Defendant’s depositions.
Cohen, ECF Nos. 220, 227-1 at 2- 4. On June 8, 2016,
the Court found that in so doing, Plaintiff failed to comply
with Section 2.k of the Court’s Electronic Case Filing
Administrative Policies and Procedures Manual, which requires
parties to seek leave of the Court to allow the
non-electronic filing of exhibits when they are not
convertible to “electronic” (i.e.,
“Portable Document Format” or “PDF”)
form. Cohen, ECF No. 228 at 1. Accordingly, the
Court did not permit these video files to be entered into the
record, but instead returned them to Plaintiff. Id.
that same day, Plaintiff filed an ex parte
application for leave to submit the above 48, and two
additional, video files as exhibits supporting his opposition
to Defendant’s motion for summary judgment.
Cohen, ECF No. 230.
10, 2016, Media Intervenors filed the instant motion, seeking
the public filing and dissemination of the complete
transcripts and videotapes of Defendant’s December 10,
2015, and January 21, 2016 depositions. Cohen, ECF
No. 233. On June 15, 2016, Defendants filed their related
motion to amend the protective order to (1) prohibit the
filing of any videotaped deposition, unless under seal; and
(2) bar the dissemination of any videotaped deposition.
Low, ECF No. 485/Cohen, ECF No. 238.
Therein, Defendants withdrew the remaining confidentiality
designations related to Defendant’s deposition
testimony. Id. at 1.
Media Intervenors’ and Defendants’
a general rule, the public is permitted ‘access to
litigation documents and information produced during
discovery.’” In re Roman Catholic Archbishop
of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011)
(quoting Phillips v. Gen. Motors Corp., 307 F.3d
1206, 1210 (9th Cir. 2002)) (citing San Jose Mercury
News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th
Cir. 1999) (“It is well-established that the fruits of
pretrial discovery are, in the absence of a court order to
the contrary, presumptively public.”)). However, under
Rule 26, “[t]he court may, for good cause, issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
Id. (alteration in original) (quoting Fed.R.Civ.P.
26(c)(1) (internal quotation marks omitted)). “The
party opposing disclosure has the burden of proving
‘good cause, ’ which requires a showing
‘that specific prejudice or harm will result’ if
the protective order is not granted.” Id.
(quoting Foltz v. State Farm Mut. Auto. Ins. Co.,
331 F.3d 1122, 1130 (9th Cir. 2003)).
courts generally make a finding of good cause before issuing
a protective order, a court need not do so where (as here)
the parties stipulate to such an order.” Id.
Where “the protective order was a stipulated order and
no party ha[s] made a good cause showing, then the burden of
proof . . . remain[s] with the party seeking
protection.” Id. (alterations in original)
(quoting Phillips, 307 F.3d at 1211 n.1) (internal
quotation marks omitted); see also Foltz, 331 F.3d
at 1138 (noting that “[r]eliance will be less with a
blanket [protective] order, because it is by nature
overinclusive” (alterations in original) (quoting
Beckman Indus., Inc. v. Int’l Ins. Co., 966
F.2d 470, 476 (9th Cir. 1992))). Therefore, where the release
of documents subject to a stipulated order is contemplated,
“the party opposing disclosure has the burden of
establishing that there is good cause to continue the
protection of the discovery material.” Id.
Ninth Circuit has delineated a two-step process for
determining whether there is good cause to continue the
protection of disputed discovery material:
First, [the court] must determine whether
“particularized harm will result from disclosure of
information to the public.” As we have explained,
“[b]road allegations of harm, unsubstantiated by
specific examples or articulated reasoning, do not satisfy
the Rule 26(c) test.” Rather, the person seeking
protection from disclosure must “allege specific
prejudice or harm.” Second, if the court concludes that
such harm will result from disclosure of the discovery
documents, then it must ...