1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GERARDO HERNANDEZ, Case No. 21-cv-09212-CRB (LJC)
8 Plaintiff, ORDER GRANTING DEFENDANT 9 v. FRANKLIN ST. RC APARTMENTS LLC’S MOTION FOR PROTECTIVE 10 SYNCRASY, et al., ORDER AND EXTENSION OF TIME 11 Defendants. Re: Dkt. No. 50
12 13 Before the Court is Defendant Franklin St. RC Apartments LLC’s (Franklin) Motion for a 14 Protective Order and for Limited Extension to Respond to Discovery. Dkt. 50. Plaintiff Gerardo 15 Hernandez opposed the motion, Dkt. 53, and Defendant Syncrasy dba Togo’s/Baskin Robbins 16 (Syncrasy) filed a statement of non-opposition to the motion, Dkt. 54. The matter is fully briefed 17 and suitable for decision without oral argument. Civ. L.R. 7-1(b). Having read the parties’ 18 submission and carefully considered their arguments and the relevant legal authority, the Court 19 GRANTS Franklin’s motion. 20 I. BACKGROUND 21 Plaintiff filed this action against Defendants Franklin and Syncrasy, alleging that their 22 inaccessible facilities violated his rights under the Americans with Disabilities Act of 1990, 23 California’s Unruh Civil Rights Act, and the Health and Safety Code § 19959. See Dkt. 1 24 (Compl.) at ¶¶ 17–46. Defendant Franklin moved for a protective order and for an extension of 25 time to produce documents subject to the disputed protective order. Dkt. 50 at 4.1 Plaintiff 26 opposes what it perceives to be a “broad protective blanket over its entire benign document 27 1 production in this ADA case,” on the grounds that Franklin has failed to demonstrate “good 2 cause,” as is required under Rule 26(c)(1) of the Federal Rules of Civil Procedure. Dkt. 53 at 2–3. 3 Plaintiff’s opposition does not directly address Franklin’s request for an extension of time. 4 Prior to filing its motion, Franklin met and conferred with Plaintiff, seeking to protect the 5 confidentiality of all leasing documents and a document that contained personally identifiable 6 information related to third parties who park in accessible parking stalls at the subject premises. 7 Dkt. 50-1 (Kim Decl.) at ¶ 8; Dkt. 50-3 at 2. Franklin proposed that the parties adopt the Northern 8 District of California’s Model Stipulated Protective Order (Model Protective Order). Dkt. 50-3 9 at 2.2 10 Plaintiff proposed edits to the Model Protective Order limiting the types of information or 11 items that could be designated “CONFIDENTIAL”. Dkt. 50-5; Dkt. 50-6 at 3, 5. Plaintiff 12 proposed adding the bolded language to the section defining confidential information or items and 13 to the section setting the scope of protections: 14 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that 15 qualify for protection under Federal Rule of Civil Procedure 26(c) expressly limited to information or documents pertaining to 16 leasing agreements. . . . . 17 SCOPE . . . . the protections conferred by this Stipulation and Order 18 do not cover the following information: . . . and (c) any portion of the Protected Material which pertains solely to agreements 19 relating to accessibility compliance. 20 Dkt. 50-6 at 3, 5. 21 Plaintiff objected that the Model Protective Order can be abusively applied. Dkt. 50-1 22 at ¶ 8. 23 II. DISCUSSION 24 To decide Franklin’s motion for a protective order, the Court looks to Rule 26(c) of the 25 Federal Rules of Civil Procedure. This rule states, “[t]he court may, for good cause, issue an order 26 2 Franklin filed a proposed order with the present motion. Dkt. 50-8. This proposed order 27 includes an Exhibit A that contains the provisions set forth in the Northern District of California’s 1 to protect a party or person from annoyance, embarrassment, oppression, or undue burden or 2 expense,” based on any of several listed reasons. Fed. R. Civ. P. 26(c)(1); see also Foltz v. State 3 Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). “Any such order, however, 4 requires that the court’s determination identify and discuss the factors it considered in its good 5 cause examination to allow appellate review of the exercise of its discretion.” Foltz, 331 F.3d at 6 1130 (citing Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 7 2002)) (internal quotation marks omitted). “A party asserting good cause bears the burden, for 8 each particular document it seeks to protect, of showing that specific prejudice or harm will result 9 if no protective order is granted.” Id. 10 “The Northern District’s model protective order is presumptively reasonable.” In re 11 Lithium Ion Batteries Antitrust Litig., No. 13-MD-02420-YGR-DMR, 2017 WL 930317, at *3 12 (N.D. Cal. Mar. 9, 2017). “A party seeking to deviate from the model protective order bears the 13 burden of showing the specific harm and prejudice that will result if its request is not granted.” 14 ESC-Toy Ltd. v. Sony Interactive Ent. LLC, No. 21-CV-00778-EMC-DMR, 2022 WL 1714627, 15 at *2 (N.D. Cal. May 27, 2022) (citing Verinata Health, Inc. v. Ariosa Diagnostics, Inc., No. C 12- 16 05501 SI, 2013 WL 5663434, at *1 (N.D. Cal. Oct. 17, 2013)) (internal quotation marks and 17 alterations omitted). 18 Plaintiff argues that a “Model Protective Order is only appropriate in cases where all 19 parties acknowledge they will be exchanging ‘highly sensitive materials’ that require ‘special 20 protection from public disclosure.’” Dkt. 53 at 5. Plaintiff contends that Franklin’s concerns 21 regarding lease documents and license plates do not justify imposing the Model Protective Order. 22 Id. Plaintiff appears to argue that because this action is a disability discrimination case, rather than 23 a “Silicon Valley high technology case,” Franklin is unable to establish good cause for a protective 24 order. Id. at 6. 25 Plaintiff’s arguments are unpersuasive. Franklin has established that discovery in this 26 action likely involves the production of proprietary and confidential information, such that good 27 cause exists for a limited protective order that protects the parties and other persons from 1 any specific harm or prejudice that will result if his proposed modification to the protective order 2 were denied. 3 First, with respect to the proprietary and confidential information, “[i]t is well-settled that 4 the Court has the authority to shield proprietary information related to the ongoing operations of a 5 business from public review.” U.S. E.E.O.C. v. ABM Indus. Inc., No. 1:07-CV-01428 LJOJLT, 6 2010 WL 785819, at *6 (E.D. Cal. Mar. 4, 2010). Franklin states that the leasing documents 7 reflect rental pricing information and other proprietary business terms relating to, among other 8 things, gross sales from Togo’s/Baskin Robbins, a third-party franchise agreement, advertising 9 and remodeling plans for the subject premises, security deposit amounts, and construction deposit 10 amounts. See Dkt. 55 at 4. According to Franklin, disclosure of the leasing documents would 11 prejudice it by harming its competitive standing. Courts have ordered the production of pricing 12 information “subject to a protective order that requires the materials to be held confidential and 13 used only in connection with the instant litigation,” U.S. E.E.O.C., 2010 WL 785819, *6.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GERARDO HERNANDEZ, Case No. 21-cv-09212-CRB (LJC)
8 Plaintiff, ORDER GRANTING DEFENDANT 9 v. FRANKLIN ST. RC APARTMENTS LLC’S MOTION FOR PROTECTIVE 10 SYNCRASY, et al., ORDER AND EXTENSION OF TIME 11 Defendants. Re: Dkt. No. 50
12 13 Before the Court is Defendant Franklin St. RC Apartments LLC’s (Franklin) Motion for a 14 Protective Order and for Limited Extension to Respond to Discovery. Dkt. 50. Plaintiff Gerardo 15 Hernandez opposed the motion, Dkt. 53, and Defendant Syncrasy dba Togo’s/Baskin Robbins 16 (Syncrasy) filed a statement of non-opposition to the motion, Dkt. 54. The matter is fully briefed 17 and suitable for decision without oral argument. Civ. L.R. 7-1(b). Having read the parties’ 18 submission and carefully considered their arguments and the relevant legal authority, the Court 19 GRANTS Franklin’s motion. 20 I. BACKGROUND 21 Plaintiff filed this action against Defendants Franklin and Syncrasy, alleging that their 22 inaccessible facilities violated his rights under the Americans with Disabilities Act of 1990, 23 California’s Unruh Civil Rights Act, and the Health and Safety Code § 19959. See Dkt. 1 24 (Compl.) at ¶¶ 17–46. Defendant Franklin moved for a protective order and for an extension of 25 time to produce documents subject to the disputed protective order. Dkt. 50 at 4.1 Plaintiff 26 opposes what it perceives to be a “broad protective blanket over its entire benign document 27 1 production in this ADA case,” on the grounds that Franklin has failed to demonstrate “good 2 cause,” as is required under Rule 26(c)(1) of the Federal Rules of Civil Procedure. Dkt. 53 at 2–3. 3 Plaintiff’s opposition does not directly address Franklin’s request for an extension of time. 4 Prior to filing its motion, Franklin met and conferred with Plaintiff, seeking to protect the 5 confidentiality of all leasing documents and a document that contained personally identifiable 6 information related to third parties who park in accessible parking stalls at the subject premises. 7 Dkt. 50-1 (Kim Decl.) at ¶ 8; Dkt. 50-3 at 2. Franklin proposed that the parties adopt the Northern 8 District of California’s Model Stipulated Protective Order (Model Protective Order). Dkt. 50-3 9 at 2.2 10 Plaintiff proposed edits to the Model Protective Order limiting the types of information or 11 items that could be designated “CONFIDENTIAL”. Dkt. 50-5; Dkt. 50-6 at 3, 5. Plaintiff 12 proposed adding the bolded language to the section defining confidential information or items and 13 to the section setting the scope of protections: 14 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that 15 qualify for protection under Federal Rule of Civil Procedure 26(c) expressly limited to information or documents pertaining to 16 leasing agreements. . . . . 17 SCOPE . . . . the protections conferred by this Stipulation and Order 18 do not cover the following information: . . . and (c) any portion of the Protected Material which pertains solely to agreements 19 relating to accessibility compliance. 20 Dkt. 50-6 at 3, 5. 21 Plaintiff objected that the Model Protective Order can be abusively applied. Dkt. 50-1 22 at ¶ 8. 23 II. DISCUSSION 24 To decide Franklin’s motion for a protective order, the Court looks to Rule 26(c) of the 25 Federal Rules of Civil Procedure. This rule states, “[t]he court may, for good cause, issue an order 26 2 Franklin filed a proposed order with the present motion. Dkt. 50-8. This proposed order 27 includes an Exhibit A that contains the provisions set forth in the Northern District of California’s 1 to protect a party or person from annoyance, embarrassment, oppression, or undue burden or 2 expense,” based on any of several listed reasons. Fed. R. Civ. P. 26(c)(1); see also Foltz v. State 3 Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). “Any such order, however, 4 requires that the court’s determination identify and discuss the factors it considered in its good 5 cause examination to allow appellate review of the exercise of its discretion.” Foltz, 331 F.3d at 6 1130 (citing Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 7 2002)) (internal quotation marks omitted). “A party asserting good cause bears the burden, for 8 each particular document it seeks to protect, of showing that specific prejudice or harm will result 9 if no protective order is granted.” Id. 10 “The Northern District’s model protective order is presumptively reasonable.” In re 11 Lithium Ion Batteries Antitrust Litig., No. 13-MD-02420-YGR-DMR, 2017 WL 930317, at *3 12 (N.D. Cal. Mar. 9, 2017). “A party seeking to deviate from the model protective order bears the 13 burden of showing the specific harm and prejudice that will result if its request is not granted.” 14 ESC-Toy Ltd. v. Sony Interactive Ent. LLC, No. 21-CV-00778-EMC-DMR, 2022 WL 1714627, 15 at *2 (N.D. Cal. May 27, 2022) (citing Verinata Health, Inc. v. Ariosa Diagnostics, Inc., No. C 12- 16 05501 SI, 2013 WL 5663434, at *1 (N.D. Cal. Oct. 17, 2013)) (internal quotation marks and 17 alterations omitted). 18 Plaintiff argues that a “Model Protective Order is only appropriate in cases where all 19 parties acknowledge they will be exchanging ‘highly sensitive materials’ that require ‘special 20 protection from public disclosure.’” Dkt. 53 at 5. Plaintiff contends that Franklin’s concerns 21 regarding lease documents and license plates do not justify imposing the Model Protective Order. 22 Id. Plaintiff appears to argue that because this action is a disability discrimination case, rather than 23 a “Silicon Valley high technology case,” Franklin is unable to establish good cause for a protective 24 order. Id. at 6. 25 Plaintiff’s arguments are unpersuasive. Franklin has established that discovery in this 26 action likely involves the production of proprietary and confidential information, such that good 27 cause exists for a limited protective order that protects the parties and other persons from 1 any specific harm or prejudice that will result if his proposed modification to the protective order 2 were denied. 3 First, with respect to the proprietary and confidential information, “[i]t is well-settled that 4 the Court has the authority to shield proprietary information related to the ongoing operations of a 5 business from public review.” U.S. E.E.O.C. v. ABM Indus. Inc., No. 1:07-CV-01428 LJOJLT, 6 2010 WL 785819, at *6 (E.D. Cal. Mar. 4, 2010). Franklin states that the leasing documents 7 reflect rental pricing information and other proprietary business terms relating to, among other 8 things, gross sales from Togo’s/Baskin Robbins, a third-party franchise agreement, advertising 9 and remodeling plans for the subject premises, security deposit amounts, and construction deposit 10 amounts. See Dkt. 55 at 4. According to Franklin, disclosure of the leasing documents would 11 prejudice it by harming its competitive standing. Courts have ordered the production of pricing 12 information “subject to a protective order that requires the materials to be held confidential and 13 used only in connection with the instant litigation,” U.S. E.E.O.C., 2010 WL 785819, *6. 14 Likewise, the harm to “competitive standing” that is likely when competitors and potential 15 business partners “glimpse into already negotiated agreements,” is sufficient to protect such 16 information from public disclosure. Linksmart Wireless Technology, LLC v. Caesars Entm’t 17 Corp., No. 2:18-cv-00862-MMD-NJK, 2020 WL 8409313, at *2 (D. Nev. Jul. 29, 2020). 18 Second, with respect to license plates and parking information, this information also 19 presents good cause for the limited protective order that Franklin seeks. On one hand, license 20 plate numbers are not private, as they are readily visible to the public. On the other hand, these 21 plate numbers are associated with individual registered owners and drivers, and in that respect, 22 they are a species of personally identifiable information. Furthermore, this information will relate 23 to third parties rather than the litigants. As such, good cause exists to protect the privacy of these 24 third parties. See Kelly v. AAA Bowls Unlimited, Inc., No. C04-2214C, 2005 WL 8172480, at *2 25 (W.D. Wash. Sept. 27, 2005) (recognizing third party privacy interests in license plate numbers). 26 Plaintiff misapprehends how the Model Protective Order applies. It is not a blanket 27 protection. The order Franklin seeks “does not confer blanket protection on all disclosures or 1 to the limited information or items that are entitled to confidential treatment under the applicable 2 legal principles.” Dkt. 50-8 at 5, ¶ 1; see also Model Protective Order, ¶ 1. Furthermore, the 3 protective order provides steps for parties seeking to challenge a confidentiality designation.3 Dkt. 4 50-8 at 14, ¶ 12.3; see also Model Protective Order, ¶ 12.3. The order does not prohibit Plaintiff 5 from discovering the leasing agreements and license plates information; it only limits the use of 6 that information to this litigation. The protective orders do not “entitle [the parties] to file 7 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 8 followed.” Dkt. 50-8 at 5, ¶ 1; see also Model Protective Order, ¶ 1. 9 Plaintiff also mistakenly argues that a protective order is only suitable in technology cases, 10 rather than discrimination cases. No such limitation exists in Rule 26(c) of the Federal Rules of 11 Civil Procedures. Indeed, this Court has established Model Protective Orders for patent and other 12 types of litigation.4 13 Due to the proprietary and personal third-party information that Franklin has identified, the 14 specific provisions of the proposed protective order, and gaps in Plaintiff’s argument, the Court 15 finds that Franklin has shown good cause for imposing the Model Protective Order. Plaintiff has 16 failed to satisfy his burden to modify the order. Accordingly, the Court GRANTS Franklin’s 17 motion for a protective order. 18 Finally, Franklin’s motion also requests a limited extension of the non-expert discovery cut 19 off to produce documents that it seeks to designate as confidential pursuant to the proposed 20 protective order. As noted earlier, Plaintiff does not oppose this request. The Court GRANTS this 21 request. 22 // 23 // 24 // 25
26 3 It should also be noted that parties that make clearly unjustified confidentiality designations or frivolous challenges to designations may face sanctions. Dkt. 50-8 at 7, 9-10, ¶¶ 5.1, 6.3; see also 27 Model Protective Order, ¶¶ 5.1 6.3. I. CONCLUSION The Court GRANTS Franklin’s motion for entry of its proposed protective order, and its 2 request for an extension of time to produce the documents that it seeks to designate as confidential 3 pursuant to the protective order. Dkt. 50. The court approved protective order is attached to this 4 order as Exhibit A. Franklin must produce to Plaintiff the documents within in seven days from 5 the date of this order. The hearing scheduled for March 23, 2023 is VACATED. 6 IT IS SO ORDERED. 7 Dated: March 21, 2023 8 J) 9 . 77 10 LISA/S. CISNERO UnitédAtates Magistrate Judge
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