Moser v. Health Insurance Innovations, Inc. et al, No. 3:2017cv01127 - Document 99 (S.D. Cal. 2018)
Court Description: ORDER Granting 75 Joint Motion for Protective Order; ORDER Requiring Immediate Production of Any Outstanding Discovery Awaiting the Entry of the Protective Order. Signed by Magistrate Judge Karen S. Crawford on 10/25/2018. (ajs)
Download PDF
<![CDATA[
Moser v. Health Insurance Innovations, Inc. et al Doc. 99 1 2 3 FILED 4 I OCT 25 2018 I 5 CLER/'\. L, 6 s SOUTHERN O;S-;iiCT BY :'F cou;.;7 C.'...i... E'-t,, -:-v 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 v. 15 HEAL TH INSURANCE INNOVATIONS, INC., a Delaware corporation; et 16 al. 17 ORDER GRANTING THE PARTIES' JOINT MOTION FOR A PROTECTIVE ORDER; Plaintiff, 13 14 CaseNo.: 17cv1127-WQH(KSC) KENNETH J. MOSER, individually, and on behalf of all others similarly situated, ORDER REQUIRING IMMEDIATE PRODUCTION OF ANY · OUTSTANDING DISCOVERY A WAITING THE ENTRY OF THE PROTECTIVE ORDER Defendants. 18 (Doc. No. 75.] 19 20 21 22 Before the Court is the parties' Joint Motion for a Protective Order to govern the 23 exchange of confidential documents and information between the parties. [Doc. No. 75.] 24 In this Joint Motion, the parties agree on the need for the Court to enter a confidentiality 25 Protective Order that is based on the Model Protective Order made available to the public 26 on the Court's website. However, they disagree as to whether it is necessary to add a 27 paragraph proposed by plaintiff. Plaintiff believes it is necessary to add a paragraph from 28 a Model Protective Order made available to the public by the Northern District of I 17cvll27-WQH(KSC) Dockets.Justia.com 1 California to prevent "overuse" of confidentiality designations by defendants. Defendants 2 contend it is unnecessary to add plaintiff's proposed paragraph, because it is redundant and 3 confusing. [Doc. No. 75, at pp. 2-5.] 4 For the reasons outlined more fully below, the Court finds that the parties' joint 5 request to enter a confidentiality protective order must be GRANTED. [Doc. No. 75.] The 6 Court will enter defendants' proposed Protective Order. 7 unnecessary to add the paragraph proposed by plaintiff. Background 8 9 In this Court's view, it is Under defendants' proposed Protective Order, which is essentially the same as this 10 Court's Model Protective Order, a party "may designate information as 11 'CONFIDENTIAL' only if, in the good faith belief of such party and its counsel, the 12 unrestricted disclosure of such information could be potentially prejudicial to the business 13 or operations of such party." [Doc. No. 75-1, at p. 4 (Exhibit 1).] Defendants' proposed 14 Protective Order also provides that a party "may designate information as 15 'CONFIDENTIAL - FOR COUNSEL ONLY' only if, in the good faith belief of such party 16 and its counsel, the information is among that considered to be most sensitive by the party, 17 including but not limited to trade secret or other confidential research, development, 18 financial or other commercial information." [Doc. No. 75-1, at p. 4 (Exhibit 1).] 19 Plaintiff's proposed confidentiality Protective Order is mostly the same as 20 defendants' proposed Protective Order, but it includes the following paragraph from a 21 Model Protective Order made available to the public by the U.S. District Court for the 22 Northern District of California: 23 24 25 26 27 28 Exercise of Restraint and Care in Designating Material for Protection: Each party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. The designating party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify - so that other portions of the material, documents, items, or communications for which protection is not warranted 2 17cvl 127-WQH(KSC) 1 2 3 4 are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the designating party to sanctions. 5 6 7 [Doc. No. 75, at p. 3, 6; Doc. No. 75-2, at p. 4 (Exhibit 2).] Discussion 8 Under Federal Rule of Civil Procedure 26(c)(l), "[a] party or any person from whom 9 discovery is sought may move for a protective order.... The court may, for good cause, 10 issue an order to protect a party or person from annoyance, embarrassment, oppression, or 11 undue burden or expense, including one or more of the following: (A) forbidding the 12 disclosure or discovery; (B) specifying terms ... for the disclosure or discovery; (C) 13 prescribing a discovery method other than the one selected by the party seeking discovery; 14 (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery 15 to certain matters; (E) designating the persons who may be present while the discovery is 16 conducted; . . . (G) requiring that a trade secret or other confidential research, 17 development, or commercial information not be revealed or be revealed only in a 18 specified way ...." Fed.R.Civ.P. (c)(l) (emphasis added). "Among the goals furthered by 19 protective orders is reducing conflict over discovery and facilitating the flow of 20 information through discovery." SA Charles Alan Wright & Arthur R. Miller, Federal 21 Practice and Procedure§ 2044.1 (3d ed.). 22 In the Joint Motion, plaintiff argues that the Court should enter his proposed 23 Protective Order, which includes the above-quoted paragraph from the Northern District's 24 Model Protective Order, to prevent defendants' "overuse" of the confidentiality 25 designations that plaintiff believes would be permitted by defendants' proposed Protective 26 Order. Plaintiff believes this additional paragraph will prevent "overuse" or "blanket mass 27 or indiscriminate" use of confidentiality designations. [Doc. No. 75, at pp. 6-8.] According 28 to plaintiff, defendants intend to designate "a broad swath of documents as confidential" 3 17cvl 127-WQH(KSC) 1 even though plaintiff believes this case "does not revolve around any highly protected. 2 information." [Doc. No. 75, at p. 6.] In plaintiffs view, defendants' ability to designate 3 documents as "confidential" should be "very limited" to "highly protected information" 4 that meets "exacting standards." [Doc. No. 75, at p. 7.] Otherwise, plaintiff believes 5 numerous confidentiality designations "will hamper the parties in submitting relevant 6 documents to the Court." [Doc. No. 75, at p. 6.] According to plaintiff, the "practical 7 effect of designating material confidential under any protective order is to bar use in public 8 filings without first having a designation dispute resolution, either informally or formally." 9 [Doc. No. 75, at p. 6.] Plaintiff also believes disputes over confidentiality designations will 10 "waste time and resources," because it will be necessary for him to "initiate a designation 11 dispute process" in order to use documents designated "confidential" as "evidence" when 12 filing motions. [Doc. No. 75, at pp. 6-7.] In short, plaintiff contends the addition of the 13 above-quoted paragraph "better serves efficient and economical litigation by limiting the 14 number of designation dispute resolutions that will have to be performed .... " [Doc. No. 15 75, at pp. 7-8.] 16 Defendants explain that plaintiff seeks to discover "broad categories" of documents 17 and information they consider commercially sensitive. Because they operate in an 18 "incredibly competitive environment," they believe competitors may obtain an unfair 19 advantage iftheir confidential commercial information is produced in this case without any 20 protection. [Doc. No. 75, at pp. 3-4.] Defendants believe plaintiffs proposed paragraph 21 is redundant, unnecessary, and confusing. According to defendants, plaintiffs proposed 22 paragraph "decreases the clarity that already exists within the Southern District Model 23 Form with respect to the designation of information, and creates inconsistency and 24 confusion as to the standard to be applied in the event of a dispute over the designation of 25 information." [Doc. No. 75, at p. 5.] As a result, they argue there is no reason to depart 26 from the Southern District's Model Protective Order. As worded, defendants believe their 27 draft Protective Order, which allows confidential designations based on a "good faith 28 4 l 7cvl 127-WQH(KSC) 1 belief' standard, will more effectively promote resolution of the case "without imposing 2 commercial harm on defendants." [Doc. No. 75, at p. 4.] 3 In this Court's view, plaintiffs concerns about defendants' potential "overuse" of 4 confidentiality designations and "designation dispute resolutions" are overstated and 5 appear to be based on misconceptions about: (1) the need for an overinclusive, blanket 6 protective order to facilitate the exchange of confidential documents and information 7 between the parties; and (2) the level of process necessary for using documents designated 8 "confidential" as "evidence" when filing motions with the Court. 9 Blanket protective orders are meant to expedite "the flow of pretrial discovery 10 materials" by extending "broad protection" to the parties without the need for a showing 11 of good cause or compelling reasons as to any individual document. Pub. Citizen v. Liggett 12 Grp., Inc., 858 F.2d 775, 790 (1st Cir. 1988). See also Foltz v. State Farm Mut. Auto. Ins. 13 Co., 331 F.3d 1122, 1133 (9th Cir. 2003); Beckman Indus., Inc. v. Int'! Ins. Co., 966 F.2d 14 470, 476 (9th Cir. 1992). 15 "overinclusive" and "peculiarly subject to later modification." Pub. Citizen v. Liggett, 858 16 F.2d at 790. Thus, by their very nature, blanket protective orders are 17 As noted above, the proposed Protective Orders submitted by both plaintiff and 18 defendants require a party to have a "good faith belief' in order to designate any document 19 as "confidential." [Doc. No. 75-1, at p. 4; Doc. No. 75-2, at pp. 3-4.] This "good faith 20 belief' standard is consistent with the purpose of a blanket protective order governing the 21 exchange of confidential documents and information between the parties. 22 As this Court reads the language of plaintiffs proposed paragraph and plaintiffs 23 arguments in the Joint Motion, it is apparent that the proposed paragraph could be 24 interpreted to require more than a "good faith basis" for designating documents 25 "confidential." Therefore, in this Court's view, the apparent inconsistency and resulting 26 confusion that could result from the addition of plaintiffs proposed paragraph has the 27 potential to increase conflict over discovery. If defendants' ability to designate documents 28 as "confidential" is "very limited" and must meet "exacting standards," as plaintiff 5 l 7cvl 127-WQH(KSC) 1 proposes [Doc. No. 75, at p. 7], defendants will be reluctant to produce any documents they 2 consider to be commercially sensitive. In other words, imposing "exacting standards" at 3 this stage of the litigation has the potential to defeat the purpose of a blanket protective 4 order that is specifically intended to expedite and facilitate the exchange of confidential 5 documents and information between the parties during the discovery process. 6 defendants contend, an "exacting standard" fails to take account of defendants' desire and 7 ability to resolve the litigation while maintaining the confidentiality of sensitive 8 commercial information from its competitors. As 9 Without more, the Court also has no reason to believe plaintiff would be 10 "hamper[ed]" [Doc. No. 75, at pp. 6-8] in any significant way by excessive process when 11 submitting documents designated by defendants as "confidential" for consideration by the 12 Court as "evidence" in connection with a motion. First, at the discovery stage of litigation, 13 the public does not have a strong or compelling interest in access to "documents produced 14 between private litigants." Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 15 2010). Therefore, a "particularized showing" of "good cause" is enough to justify filing 16 documents under seal that are submitted in connection with a non-dispositive motion, such 17 a discovery motion or a motion to amend the scheduling order. Kamakana v. City & Cty. 18 of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). "For good cause to exist, the party 19 seeking protection bears the burden of showing specific prejudice or harm will result if no 20 protective order is granted." Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 21 F.3d 1206, 1210-1211 (9th Cir. 2002). 22 To the extent it becomes necessary for plaintiff to submit documents as exhibits to a 23 non-dispositive motion that have been designated by the defendants as "confidential," all 24 that is required is a simple Motion to File Documents Under Seal which explains that the 25 request is being made because defendants designated the documents as "confidential." 26 Instructions for this process are available on the Court's website in a document entitled 27 User's Manual for Civil Sealed Documents for Attorneys. When documents designated 28 "confidential" are submitted as exhibits to a non-dispositive motion, the Court routinely 6 17cvll27-WQH(KSC) 1 grants motions to file those documents under seal, unless there is reason to believe good 2 cause to maintain confidentiality is lacking (i.e., because the party who designated the 3 document as "confidential" did not have a "good faith basis" for doing so as required under 4 the Protective Order). See, e.g., Phillips ex rel. Estates ofByrdv. Gen. Motors Corp., 307 5 F.3d 1206, 1213 (9th Cir. 2002) (stating as follows: "When a court grants a protective 6 order for information produced during discovery, it already has determined that 'good 7 cause' exists to protect this information from being disclosed to the public by balancing 8 the needs for discovery against the need for confidentiality."). In any event, if plaintiff 9 filed a motion in this case seeking to file documents designated by defendants as 10 "confidential," and the Court had reason to question whether there was good cause to file 11 those documents under seal, the burden would be on defendants, not plaintiff, to make a 12 showing of good cause. 13 Second, when a dispositive matter is before the Court for consideration, there is 14 controlling case law that acts to protect any interest the public might have in accessing 15 litigation documents. 16 documents or information throughout an entire judicial proceeding, including the time of 17 trial, a higher showing of "compelling reasons" is required. See, e.g., Kamakana v. 18 Honolulu, 447 at 1180 (stating that "records attached to dispositive motions [are treated] 19 differently from records attached to non-dispositive motions. Those who seek to maintain 20 the secrecy of documents attached to dispositive motions must meet the high threshold of 21 showing that 'compelling reasons' support secrecy...."). As the parties seeking to 22 maintain confidentiality, defendants would have the burden of establishing "compelling 23 reasons" for filing documents designated "confidential" under seal. Id. at 1178-1181. 24 More specifically, defendants would be required to "articulate compelling reasons 25 supported by specific factual findings that outweigh the general history of access and the 26 public policies favoring disclosure." Id. at 1178-1179 (internal quotation omitted). See 27 alsoFoltzv. StateFarmMut. Auto. Ins. Co., 331F.3d1122, 1135-1138 (9th Cir. 2003). 28 III To the extent parties seek to maintain the confidentiality of 7 17cvl 127-WQH(KSC) 1 If plaintiff seeks to submit documents designated by defendants as "confidential" for 2 consideration as "evidence" in connection with a dispositive matter (e.g., a summary 3 judgment motion), he would simply submit those documents with a Motion to File 4 Documents Under Seal explaining that the request is being made because defendants 5 designated the documents as "confidential." To the extent required by the District Court, 6 it would be defendants' burden to establish compelling reasons to file those documents 7 under seal. Accordingly, without more, the Court rejects plaintiffs contention that he will 8 be "hamper[ed]" by defendants' confidentiality designations, because he would be required 9 to "initiate a designation dispute process" in order to use documents designated 10 "confidential" as "evidence" when filing motions. [Doc. No. 75, at pp. 6-8.] 11 In addition, the Court notes that defendants' proposed Protective Order includes a 12 remedy in the event a non-designating party contends that a designating party designated 13 documents or information as "confidential" without a "good faith belief' that "the 14 unrestricted disclosure of such information could be potentially prejudicial to the business 15 or operations of such party." [Doc. No. 75-1, at p. 7.] In this regard, paragraph 13 of 16 defendants' proposed Protective Order states as follows: 17 18 19 20 21 22 23 13. At any stage of these proceedings, any party may object to a designation of the materials as confidential information. The party objecting to confidentiality must notify, in writing, counsel for the designating party of the objected-to materials and the grounds for the objection. If the dispute is not resolved consensually between the parties within seven (7) days of receipt of such a notice of objections, the objecting party may move the Court for a ruling on the objection. The materials at issue must be treated as confidential information, as designated by the designating party, until the Court has ruled on the objection or the matter has been otherwise resolved. 24 25 [Doc. No. 75-1, at pp. 7-8.] 26 27 28 This remedy is a reasonable one under the circumstances, and the Court has no reason to believe that plaintiff or any other party would be materially "hamper[ ed]" by 8 17cvl 127-WQH(KSC) 1 the process that is required under defendants' proposed Protective Order to challenge 2 confidentiality designations that appear baseless. Accordingly, based on the facts and 3 circumstances presented, the Court finds that the proposed Protective Order submitted by 4 defendants is sufficient to protect the interests of all parties and to facilitate the exchange 5 of confidential documents and information between the parties, so it is unnecessary for 6 the Protective Order to include the additional paragraph proposed by plaintiff. Conclusion 7 8 Based on the foregoing, IT IS HEREBY ORDERED that the parties' joint request 9 to enter a confidentiality Protective Order is GRANTED. [Doc. No. 75.] The Court will 10 enter defendants' proposed Protective Order. To the extent any party has been withholding 11 documents or information from production in response to another party's discovery 12 requests while awaiting the entry of a confidentiality Protective Order, that party must 13 produce any such documents or information no later than ten (10) davs after this Order is 14 entered. 15 IT IS SO ORDERED. 16 Dated: October _Jfi,_, 2018 17 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 9 17cvl 127-WQH(KSC)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
