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Heredia v. Sunrise Senior Living, LLC

United States District Court, C.D. California, Southern Division

December 12, 2019

AUDREY HEREDIA, as successor-in-interest to the Estate of Carlos Heredia; AMY FEARN, as successor-in-interest to the Estate of Edith Zack; and HELEN GANZ, by and through her Guardian ad Litem, Elise Ganz; on their own behalves and on behalf of others similarly situated, Plaintiffs,
v.
SUNRISE SENIOR LIVING, LLC; and DOES 1 through 100, Defendants.

          PROTECTIVE ORDER [NOTE CHANGES BY THE COURT]

          JOHN D. EARLY UNITED STATES MAGISTRATE JUDGE.

         Based on the Joint Submission Regarding Stipulated Protective Order (Dkt. 101) and arguments of counsel for the parties, the Court finds and orders as follows.

         1. PURPOSES AND LIMITATIONS

         Discovery in this action is likely to involve production of confidential, proprietary or private information, including protected health information (“PHI”), for which special protection from public disclosure and from use for any purpose other than pursuing this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. Although it is Plaintiffs' position that they are not seeking the production of individually identifiable health information, the parties, by and through their respective counsel, have mutually agreed to remain in full compliance with any privacy requirements imposed by regulations promulgated under HIPAA, the Confidentiality of Medial Information Act (“CMIA”), the California regulations regarding Residential Care Facilities for the Elderly (“RCFEs”), and all laws protecting the privacy and confidentiality of RCFE residents' personal information. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles.

         2. GOOD CAUSE STATEMENT

         This action involves the services provided by assisted living facilities and the payments made for such services. Accordingly, it is highly likely to involve personal financial and medical information of Plaintiffs and putative class members, trade secrets, customer and pricing lists, staffing data, and other valuable research, development, commercial, financial, technical and/or proprietary information for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted. Such confidential and proprietary materials and information consist of, among other things, Plaintiffs' and the putative class members' medical records, care records, financial records, and other personal information; Defendant's confidential business or financial information, including internal budgets, pricing structures, staffing analyses, financial performance data, employee compensation information, employee training materials, and other information regarding confidential business practices and policies (or the lack thereof), or other confidential research, development, or commercial information (including information implicating privacy rights of Non-Parties), information otherwise generally unavailable to the public, or which may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case.

         3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE

         The parties further acknowledge, as set forth in Section 14.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material 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. See Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Elecs., Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing), and a specific showing of good cause or compelling reasons with proper evidentiary support and legal justification, must be made with respect to Protected Material that a party seeks to file under seal. The parties' mere designation of Disclosure or Discovery Material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” does not- without the submission of competent evidence by declaration, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable-constitute good cause.

         Further, if a party requests sealing related to a dispositive motion or trial, then compelling reasons, not only 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, 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.

         4. DEFINITIONS

         4.1 Action: Heredia v. Sunrise Senior Living, LLC, Case No. 8:18-cv-1974-JLS(JDEx).

         4.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order.

         4.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.

         4.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff).

         4.5 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”

         4.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery.

         4.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this Action.

         4.8 “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” Information or Items: extremely sensitive “CONFIDENTIAL” information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c) and contain sensitive personal information regarding individuals (including but not limited to social security numbers, financial account numbers, credit card numbers, mothers' maiden names, passwords, driver's license numbers or state identification numbers, and dates of birth, as well as home addresses, personal e-mail addresses, and telephone numbers of persons other than the named Plaintiffs); names of minor children; PHI as that term is defined under HIPAA and the federal regulations enacted pursuant to HIPAA and medical information protected from disclosure under California law, including the CMIA; trade secrets; and any other extremely sensitive “Confidential Information or Items,' disclosure of which, to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.

         4.9 House Counsel: attorneys who are employees of a party to this Action. House Counsel does not include Outside Counsel of Record or any other outside counsel.

         4.10 Non-Party: any natural person, partnership, corporation, association or other legal entity not named as a Party to this action.

         4.11 Outside Counsel of Record: attorneys who are not employees of a party to this Action but are retained to represent a party to this Action and have appeared in this Action on behalf of that party or are affiliated with a law firm that has appeared on behalf of that party, and includes support staff.

         4.12 Party: any party to this Action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).

         4.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action.

         4.14 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.

         4.15 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY.”

         4.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.

         5. SCOPE

         The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

         Any use of Protected Material at trial shall be governed by the orders of the trial judge and other applicable authorities. This Order does not govern the use of Protected Material at trial.

         6. DURATION

         Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; or (2) entry of final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the expiration of time limits pursuant to applicable law for pursuing such appeals, rehearings, remands, trials, or review.

         However, if this case proceeds to trial, information that was designated as CONFIDENTIAL or maintained pursuant to this protective order used or introduced as an exhibit at trial becomes public and will be presumptively available to all members of the public, including the press, unless compelling reasons supported by specific factual findings to proceed otherwise are made to the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing documents produced in discovery from “compelling reasons” standard when merits-related documents are part of court record). Accordingly, the ...


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