Summary
rejecting proposed protective order unless specific harm or resulting prejudice was identified for each document or category of documents the parties sought to protect
Summary of this case from Medtronic Vascular Inc. v. Abbott Cardiovascular Systems, Inc.Opinion
No. EDCV 04-00079-VAP (SSx), [Consolidated with case no. EDCV 04-00759-VAP (SSx)].
May 17, 2005
MEMORANDUM AND ORDER RE: PARTIES' STIPULATION AND PROPOSED PROTECTIVE ORDER
The Court has received and considered the parties' stipulation and proposed protective order ("Protective order") lodged on May 13, 2005. The Court is unable to adopt the Protective Order as stipulated to by the parties for the following reasons:
First, a protective order must be narrowly tailored and cannot be overbroad. The parties have listed specific examples of sensitive and confidential information in paragraph three of the Protective Order. However, they have also made the list of information protected by the Protective Order overbroad, by indicating that the potential list of confidential information was "not limited" to that list. (See p. 2, ¶ 3 ("Such information includes any and all information which is deemed confidential under law and all water system operating infrastructure and locational information, including but not limited to:. . . .")) (emphasis added). The documents, information, items or materials that are subject to any revised protective order shall be described in a meaningful fashion and shall be limited to a specific list.
Likewise, the Court cannot agree that "any" information that the parties choose to designate as confidential shall be designated as "Confidential/Public Safety Information." (See pp. 3-4, ¶ 4). As such, the Protective Order is overbroad. Only the documents, information, items and materials identified in paragraph three of the Protective Order shall be designated as confidential.
Second, the Court cannot agree that any information that the parties choose to designate as confidential shall be labeled as "Confidential/Public Safety Information, Subject to Public Safety Protective Order." (See p. 4, ¶ 9). Such labeling might suggest that the Court itself had made a determination regarding the confidential nature of the information when, in fact, only a party had made such a determination. The parties are free, in a revised stipulation, to agree that documents be marked as confidential, but should not include any language suggesting that the Court has also reached that conclusion.
Third, the Court will not agree to hear any testimony or motions pertaining to any confidential information in camera or in chambers. (See pp. 6-7, ¶ 15). In any revised protective order, the parties may not obligate the Court.
Fourth, the Court will not agree to have any of its personnel be bound by the terms of the Protective Order or sign the Non-Disclosure Agreement. (See pp. 7-8, ¶¶ 17(g) and 18).
Fifth, to the extent that the parties' procedures do not conform to Local Rule 37, the Court will not agree to the procedures the parties propose in the event of a dispute regarding the designation or disclosure of confidential information. (See pp. 8-9, ¶ 21). In the event of a dispute regarding the designation of confidential information or use, the procedure for obtaining a decision from the Court is that set forth in Local Rule 37.
Finally, the parties need to articulate more specifically the requisite good cause required for a protective order than the general statement in paragraph two of the current Protective Order. Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003) (court's protective order analysis requires examination of good cause) (citing Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11, 1212 (9th Cir. 2002); San Jose Mercury News, Inc. v. United States Dist. Court, 187 F.3d 1096, 1102 (9th Cir. 1999); Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir.), cert. denied, 506 U.S. 868, 113 S. Ct. 197, 121 L. Ed. 2d 140 (1992)). The Court may enter a protective order only upon a showing of good cause. Phillips, 307 F.3d at 1210-11 (Rule 26 (c) requires a showing of good cause for a protective order); Makar-Wellbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause showing).
In any revised stipulated protective order submitted to the Court, the parties must include a statement demonstrating good cause for entry of a protective order pertaining to the documents or information described in the order. The documents to be protected shall be specifically described and identified. The paragraph containing the statement of good cause should be preceded by the phrase: "GOOD CAUSE STATEMENT." The parties shall articulate, for each document or category of documents they seek to protect, the specific prejudice or harm that will result if no protective order is entered. Foltz, 331 F.3d at 1130 (citations omitted).
In any revised stipulated protective order, the parties shall include the following in the caption: "[Discovery Document: Referred to Magistrate Judge Suzanne H. Segal]."
IT IS SO ORDERED.