Low v. Trump University, LLC

         ORDER: 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]

          Hon. Gonzalo P. Curiel United States District Judge

         Before 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.

         First, 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. 233.^[1]

         Second, 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.

         Third, before the Court is Plaintiff’s June 9, 2016 ex parte application for leave to file electronic exhibits (“Pl. App.”). Cohen, ECF No. 230.

         The 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.

         Upon 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.

         PROCEDURAL BACKGROUND

         On 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.

         Under 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 . . . .” Id.

         On 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.

         On June 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. at 2.

         Later 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.

         On June 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.

         DISCUSSION

         I. Media Intervenors’ and Defendants’ Motions

         A. Legal Standard

         “As 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)).

         “While 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.

         The 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 ...