Judge: Nathan Vu, Case: 30-2022-01255944, Date: 2022-10-24 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Case Management Conference
The case management conference will be held immediately after the hearing on the motion for protective order.
Motion for Protective Order
Plaintiff Brown & Brown Insurance Services of California, Inc.’s motion for a protective order is GRANTED in part and DENIED in part.
Plaintiff Brown & Brown Insurance Services of California, Inc. shall submit a proposed protective order consistent with this ruling within ten (10) court days.
Plaintiff Brown & Brown Insurance Services of California, Inc., moves for a protective order governing the treatment of confidential information.
“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Civil Proc. Code, § 2031.060, subd. (b)(5); see also Civil Proc. Code, §§ 2030.090(b)(6); 2033.080(b)(4).)
This includes protective orders that: “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way.” (Civil Proc. Code, § 2031.060(b)(5); see also Civil Proc. Code, §§ 2030.090(b)(6), 2033.080(b)(4).)
Any motion for protective order shall be accompanied by a meet and confer declaration pursuant to Civil Procedure Code section 2016.040 that “state[s] facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”. (See Civil Proc. Code, § 2031.060, subd. (a).) That requirement has been met here. (See Cole Decl., ¶¶ 5-10.)
The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins. Co. v. Superior Ct. (2000) 22 Cal.4th 245, 255; Stadish v. Superior Ct. (1999) 71 Cal.App.4th 1130, 1145.) “The concept of good cause . . . calls for a factual exposition of a reasonable ground for the sought order.” (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.) Proof on the question of good cause is presented through declarations and counter-declarations. (Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 389.)
In this case, the parties agree to most of the terms contained in Plaintiff’s proposed protective order, and the court finds good cause to issue a protective order governing the disclosure and treatment of confidential information pursuant to the terms stipulated to between the parties.
However, two provisions within Plaintiff’s proposed protective order are in dispute.
Access to Information Designated “Confidential – Attorneys’ Eyes Only”
Defendant requests an additional provision that would allow him to review “Confidential – Attorneys’ Eyes Only” documents “as to any designated document that Plaintiff contends he [Defendant] retained, used, or misused against Plaintiff.”
Plaintiff contends that Defendant’s proposal improperly puts the onus on Plaintiff to know, prior to designation, what information Defendant has misappropriated.
Defendant argues that he cannot fully defend the matter without access to the documents he is alleged to have improperly retained, used, or misused.
Both parties’ contentions have merit. However, the matter can be resolved by replacing the disputed sentences in Paragraph 1 of the Protective Order with the following:
Documents
identified as “Confidential – Attorneys’ Eyes Only” shall be shown only to and
shared only with attorneys actively working on this case and persons employed
or engaged by and assisting such attorneys to prepare this case; independent
experts; and stenographic and clerical employees associated with such
attorneys, legal staff and experts; court personnel; any court reporter
employed in this litigation and acting in that capacity; and any person
indicated on the face of the document to be its author or co-author, or any
person identified on the document as one to whom a copy of such document was
lawfully provided before its production in this action, or Defendant Chris
Morse as to any designated document that Plaintiff contends he retained,
used, or misused against Plaintiff. The contents of such documents shall
not be disclosed, directly or in summary or extract form, to the parties
directly except as stated below.
Documents identified as “Confidential – Attorneys’ Eyes Only” may be shown to or shared with Defendant Christopher Morse as follows: After review by Defendant’s counsel, Defendant’s counsel may request in writing to Plaintiff’s counsel that any document identified as “Confidential – Attorneys’ Eyes Only” be shown to or shared with Defendant Christopher Morse. If Plaintiff’s counsel confirms in writing within 15 days that Plaintiff does not contend that the document has been retained, used, or misused by Defendant against Plaintiff, then the document may not be shown to or shared with Defendant Christopher Morse. If no such written confirmation is received within 15 days, the document may be shown to or shared with Defendant Christopher Morse.
Pre-Existing or Independent Access
Plaintiff proposes that the protective order should not govern the use of any information to which any party or non-party had pre-existing or independent access, only if such access was “lawful and authorized”.
Plaintiff argues that this language is necessary to prevent further misappropriated use or dissemination pending judicial determination as to the character of that material.
Defendant contends that the proposed language would require a legal conclusion, which only a trier of fact can determine. This would allow Plaintiff to keep Defendant from using information to which Defendant already had access until the court makes a determination whether such access was “lawful and authorized.”
Plaintiff fails to show good cause for the proposed language. This protective order is intended to regulate the use of documents and information produced in discovery. Plaintiff’s proposed language would allow the protective order to be used to prohibit Defendant from accessing documents and information to which he had access prior to this lawsuit.
For example, Plaintiff could designate a document as “Confidential – Attorney’s Eyes Only” even though Defendant already had such documents in his possession. Even if the document in question is not properly in the possession of the Defendant, avoiding further misappropriated use or dissemination is a matter to be addressed in a motion for preliminary injunctive relief, not a discovery protective order.
Therefore, the sentences in dispute in Paragraph 7 of the Protective Order should read as follows:
Any designation of information as Confidential Information applies only to the materials produced in discovery or in the case; this stipulation and order does not govern the use of any information to which any party or non-party had pre-existing or independent access.
Defendant shall give notice of this ruling.