USA v. Montrose Chemical

• Court: District Court, C.D. California
• Decided: February 4, 2020
• Docket: 2:90-cv-03122
• Status: Unknown

Opinion

7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA 11 and STATE OF CALIFORNIA, Case No. 2:90-cv-03122 DOC(GJSx)

12 Plaintiffs, [PROPOSED] STIPULATED 13 v. PROTECTIVE ORDER1

14 MONTROSE CHEMICAL CORP. OF CALIFORNIA, et al., 15 Defendants. 16 17 18 1. A. PURPOSES AND LIMITATIONS 19 Discovery in this action is likely to involve production of confidential, 20 proprietary or private information for which special protection from public 21 disclosure and from use for any purpose other than prosecuting this litigation may 22 be warranted. Accordingly, the Parties hereby stipulate to and petition the Court to 23 enter the following Stipulated Protective Order. The Parties acknowledge that this 24 Order does not confer blanket protections on all disclosures or responses to 25 discovery and that the protection it affords from public disclosure and use extends 26 27 1 only to the limited information or items that are entitled to confidential treatment 2 under the applicable legal principles. 3 B. GOOD CAUSE STATEMENT 4 This action under the Comprehensive Environmental Response, 5 Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675, involves 6 the cleanup of the environment, including contaminated soils and groundwater and 7 industrial and residential properties. Discovery in this action is thus likely to involve 8 trade secrets, customer and pricing lists and other valuable research, development, 9 commercial, financial, technical and/or proprietary information, confidential 10 business information submitted to the United States pursuant to 40 C.F.R. part 2, 11 subpart B, or to the California Department of Toxic Substances Control pursuant to 12 California Health & Safety Code sections 25173, 25185.6, 25358.1, or 25358.2, 13 personally identifying information subject to the Privacy Act, 5 U.S.C. § 552a, and 14 sensitive personal health, employment, and financial information for which special 15 protection from public disclosure and from use for any purpose other than 16 prosecution of this action is warranted. 17 Such confidential and proprietary materials and information consist of, among 18 other things, confidential business or financial information, information regarding 19 confidential business practices, or other confidential research, development, or 20 commercial information (including information implicating privacy rights of third 21 parties), information otherwise generally unavailable to the public, or which may be 22 privileged or otherwise protected from disclosure under state or federal statutes or 23 regulations, court rules, case decisions, or common law. Accordingly, to expedite 24 the flow of information, to facilitate the prompt resolution of disputes over 25 confidentiality of discovery materials, to adequately protect information the Parties 26 are entitled to keep confidential, to ensure that the Parties are permitted reasonable 27 necessary uses of such material in preparation for and in the conduct of trial, to 1 protective order for such information is justified in this matter. It is the intent of the 2 Parties that information will not be designated as confidential for tactical reasons 3 and that nothing be so designated without a good faith belief that it has been 4 maintained in a confidential, non-public manner, and there is good cause why it 5 should not be part of the public record of this case. 6 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 7 The Parties further acknowledge, as set forth in Section 12.3, below, that this 8 Stipulated Protective Order does not entitle them to file confidential information 9 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 10 and the standards that will be applied when a party seeks permission from the Court 11 to file material under seal. 12 There is a strong presumption that the public has a right of access to judicial 13 proceedings and records in civil cases. In connection with non-dispositive motions, 14 good cause must be shown to support a filing under seal. See Kamakana v. City and 15 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 16 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 17 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 18 require good cause showing), and a specific showing of good cause or compelling 19 reasons with proper evidentiary support and legal justification, must be made with 20 respect to Protected Material that a party seeks to file under seal. The Parties’ mere 21 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 22 without the submission of competent evidence by declaration, establishing that the 23 material sought to be filed under seal qualifies as confidential, privileged, or 24 otherwise protectable—constitute good cause. 25 Further, if a party requests sealing related to a dispositive motion or trial, then 26 compelling reasons, not only good cause, for the sealing must be shown, and the 27 relief sought shall be narrowly tailored to serve the specific interest to be protected. 1 each item or type of information, document, or thing sought to be filed or introduced 2 under seal in connection with a dispositive motion or trial, the party seeking 3 protection must articulate compelling reasons, supported by specific facts and legal 4 justification, for the requested sealing order. Again, competent evidence supporting 5 the application to file documents under seal must be provided by declaration. 6 Any document that is not confidential, privileged, or otherwise protectable in 7 its entirety will not be filed under seal if the confidential portions can be redacted. 8 If documents can be redacted, then a redacted version for public viewing, omitting 9 only the confidential, privileged, or otherwise protectable portions of the document, 10 shall be filed. Any application that seeks to file documents under seal in their 11 entirety should include an explanation of why redaction is not feasible. 12 2. DEFINITIONS 13 2.1 Action: this pending federal lawsuit. 14 2.2 Challenging Party: a Party or Non-Party that challenges the 15 designation of information or items under this Order. 16 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 17 how it is generated, stored or maintained) or tangible things that qualify for 18 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 19 the Good Cause Statement. 20 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 21 their support staff). 22 2.5 Designating Party: a Party or Non-Party that designates information or 23 items that it produces in disclosures or in responses to discovery as 24 “CONFIDENTIAL.” 25 2.6 Disclosure or Discovery Material: all items or information, regardless 26 of the medium or manner in which it is generated, stored, or maintained (including, 27 among other things, testimony, transcripts, and tangible things), that are produced or 1 2.7 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 4 2.8 House Counsel: attorneys who are employees of a party to this Action. 5 House Counsel does not include Outside Counsel of Record or any other outside 6 counsel. 7 2.9 Non-Party: any natural person, partnership, corporation, association or 8 other legal entity not named as a party to this Action. 9 2.10 Outside Counsel of Record: (a) attorneys who are not employees of a 10 party to this Action but are retained to represent or advise a party to this Action and 11 have appeared in this Action on behalf of that party or are affiliated with a law firm 12 that has appeared on behalf of that party, or (b) attorneys for the U.S. Department of 13 Justice or the California Attorney General’s Office; and includes support staff. 14 2.11 Party: any party to this Action, including all of its officers, directors, 15 employees, consultants, retained experts, and Outside Counsel of Record (and their 16 support staffs). 17 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 18 Discovery Material in this Action. 19 2.13 Professional Vendors: persons or entities that provide litigation 20 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 21 demonstrations, and organizing, storing, or retrieving data in any form or medium) 22 and their employees and subcontractors. 23 2.14 Protected Material: any Disclosure or Discovery Material that is 24 designated as “CONFIDENTIAL.” 25 2.15 Receiving Party: a Party that receives Disclosure or Discovery 26 Material from a Producing Party. 3. SCOPE 27 1 The protections conferred by this Stipulation and Order cover not only 2 Protected Material (as defined above), but also (1) any information copied or 3 extracted from Protected Material; (2) all copies, excerpts, summaries, or 4 compilations of Protected Material; and (3) any testimony, conversations, or 5 presentations by Parties or their Counsel that might reveal Protected Material. 6 Any use of Protected Material at trial shall be governed by the orders of the 7 trial judge. This Order does not govern the use of Protected Material at trial. 8 This Stipulated Protective Order shall supersede all prior protective orders 9 and any amendments thereto governing the production or transmission of 10 confidential information through discovery in this litigation. Previously designated 11 confidential information pursuant to any prior protective order shall remain so 12 designated, and the terms of this Stipulated Protective Order shall govern its use, 13 from the date of entry of this Stipulated Protective Order going forward. Past orders 14 regarding the confidentiality of settlement conferences and communications in this 15 litigation include the July 17, 2000 Order re Confidentiality of Settlement 16 Conferences, as supplemented by the April 22, 2015 and June 25, 2018 Orders re 17 Confidentiality of Settlement Conferences and Communications with the Special 18 Master (“Past Confidentiality Orders”). Past Confidentiality Orders remain in full 19 force and effect, including the provision that the receipt of documents or 20 information pursuant to the Past Confidentiality Orders shall not prejudice any 21 Party’s ability or right to receive or obtain those documents or information through 22 other lawful channels, including discovery. Additionally, a Party may make use of 23 its own documents and information for any evidentiary purpose, even if the 24 document or information was subject to Past Confidentiality Orders. 25 Communications regarding settlement of this matter may not be designated as 26 Protected Information pursuant to this Stipulated Protective Order. 27 4. DURATION 1 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 2 has run. Except as set forth below, the terms of this protective order apply through 3 FINAL DISPOSITION of the action. The Parties have stipulated that they will be 4 contractually bound by certain terms of this agreement beyond FINAL 5 DISPOSITION. Once all proceedings in this case are complete, the Parties’ 6 agreement may be enforced only in a separate action. 7 Once a case proceeds to trial, information that was designated as 8 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 9 as an exhibit at trial becomes public and will be presumptively available to all 10 members of the public, including the press, unless compelling reasons supported by 11 specific factual findings to proceed otherwise are made to the trial judge in advance 12 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 13 showing for sealing documents produced in discovery from “compelling reasons” 14 standard when merits-related documents are part of court record). Accordingly, for 15 such materials, the terms of this protective order do not extend beyond the 16 commencement of the trial. 17 5. DESIGNATING PROTECTED MATERIAL 18 5.1 Exercise of Restraint and Care in Designating Material for Protection. 19 Each Party or Non-Party that designates information or items for protection under 20 this Order must take care to limit any such designation to specific material that 21 qualifies under the appropriate standards. The Designating Party must designate for 22 protection only those parts of material, documents, items or oral or written 23 communications that qualify so that other portions of the material, documents, items 24 or communications for which protection is not warranted are not swept unjustifiably 25 within the ambit of this Order. 26 The prosecution and defense of this action will require each Party to review 27 and to disclose large quantities of information and documents, including 1 page-by-page preproduction review of Disclosure or Discovery Material may 2 impose an undue burden on the Parties’ resources that is disproportionate to the 3 needs of the case. Therefore, the Court determines that a Producing Party may 4 designate Disclosure or Discovery Material as subject to this Stipulated Protective 5 Order on the grounds that the material: (1) has not been subject to a full page-by- 6 page review for information that may be entitled to confidential treatment under 7 Rule 26(c); and (2) was obtained from a source that may contain information that 8 may be entitled to confidential treatment under Rule 26(c). Other than as expressly 9 stated in this Paragraph, mass, indiscriminate, or routinized designations are 10 prohibited. Designations that are shown to be clearly unjustified or that have been 11 made for an improper purpose (e.g., to unnecessarily encumber the case 12 development process or to impose unnecessary expenses and burdens on other 13 parties) may expose the Designating Party to sanctions. 14 If it comes to a Designating Party’s attention that information or items that it 15 designated for protection do not qualify for protection, that Designating Party must 16 promptly notify all other Parties that it is withdrawing the inapplicable designation. 17 5.2 Manner and Timing of Designations. Except as otherwise provided in 18 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 19 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 20 under this Order must be clearly so designated before the material is disclosed or 21 produced. 22 Designation in conformity with this Order requires: 23 (a) for information in documentary form (e.g., paper or electronic 24 documents, but excluding transcripts of depositions or other pretrial or trial 25 proceedings), that the Producing Party affix at a minimum, the legend “SUBJECT 26 TO PROTECTIVE ORDER” or “CONFIDENTIAL UNDER PROTECTIVE 27 ORDER” (hereinafter “CONFIDENTIAL legend”), to each page that contains 1 unduly burdensome, a Party may affix the “CONFIDENTIAL legend” to each page 2 of the document. The “CONFIDENTIAL legend” must be positioned to avoid 3 obscuring parts of the page that are not blank. If only a portion of the material on a 4 page qualifies for protection, the Producing Party also must clearly identify the 5 protected portion(s) (e.g., by making appropriate markings in the margins). 6 A Party or Non-Party that makes original documents available for inspection 7 need not designate them for protection until after the inspecting Party has indicated 8 which documents it would like copied and produced. During the inspection and 9 before the designation, all of the material made available for inspection shall be 10 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 11 documents it wants copied and produced, the Producing Party must determine which 12 documents, or portions thereof, qualify for protection under this Order. Then, 13 before producing the specified documents, the Producing Party must affix the 14 “CONFIDENTIAL legend” to each page that contains Protected Material. The 15 “CONFIDENTIAL legend” must be positioned to avoid obscuring parts of the page 16 that are not blank. If only a portion of the material on a page qualifies for 17 protection, the Producing Party also must clearly identify the protected portion(s) 18 (e.g., by making appropriate markings in the margins). 19 (b) for testimony given in depositions, the testimony shall be treated as 20 “CONFIDENTIAL” until 30 days after the transcript is delivered in draft or final 21 form to each Party that has ordered a copy, unless the Parties in attendance at the 22 deposition agree, on the record or in writing, to a shorter time period. Before the 23 30-day period expires, the Designating Party may serve a Notice of Designation to 24 all Parties that specifically identifies the Disclosure or Discovery Material in the 25 transcript by citing the corresponding page and line numbers. After the 30-day 26 period expires, only those portions of the transcript identified in the Notice of 27 Designation will continue to be “CONFIDENTIAL” information. Deposition 1 (or using words of similar effect): “This deposition contains confidential 2 information subject to the Stipulated Protective Order entered in United States of 3 America, et al. v. Montrose Chemical Corporation of California, et al., No. 2:90-cv- 4 03122 DOC(GJSx).” Notwithstanding anything to the contrary in this Paragraph, a 5 Party may disclose “CONFIDENTIAL” information during a deposition in 6 accordance with Paragraph 7.2(h). 7 (c) for information produced in some form other than documentary and 8 for any other tangible items, that the Producing Party affix in a prominent place on 9 the exterior of the container or containers in which the information is stored the 10 legend “CONFIDENTIAL.” If only a portion or portions of the information 11 warrants protection, the Producing Party, to the extent practicable, shall identify the 12 protected portion(s). 13 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 14 failure to designate qualified information or items does not, standing alone, waive 15 the Designating Party’s right to secure protection under this Order for such material. 16 Upon timely correction of a designation, the Receiving Party must make reasonable 17 efforts to assure that the material is treated in accordance with the provisions of this 18 Order. 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 21 designation of confidentiality at any time that is consistent with the Court’s 22 Scheduling Order. 23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 24 resolution process under Local Rule 37.1 et seq. 25 6.3 The burden of persuasion in any such challenge proceeding shall be on 26 the Designating Party. Frivolous challenges, and those made for an improper 27 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 1 Party has waived or withdrawn the confidentiality designation, all Parties shall 2 continue to afford the material in question the level of protection to which it is 3 entitled under the Producing Party’s designation until the Court rules on the 4 challenge. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is 7 disclosed or produced by another Party or by a Non-Party in connection with this 8 Action only for prosecuting, defending or attempting to settle this Action. Such 9 Protected Material may be disclosed only to the categories of persons and under the 10 conditions described in this Order. When the Action has been terminated, a 11 Receiving Party must comply with the provisions of section 13 below (FINAL 12 DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 location and in a secure manner that ensures that access is limited to the persons 15 authorized under this Order. 16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 17 otherwise ordered by the Court or permitted in writing by the Designating Party, a 18 Receiving Party may disclose any information or item designated 19 “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 21 well as employees of said Outside Counsel of Record to whom it is reasonably 22 necessary to disclose the information for this Action; 23 (b) the officers, directors, and employees (including House Counsel) of 24 the Receiving Party to whom disclosure is reasonably necessary for this Action; 25 (c) Experts (as defined in this Order) of the Receiving Party to whom 26 disclosure is reasonably necessary for this Action and who have signed the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 (e) court reporters and their staff; 2 (f) professional jury or trial consultants, mock jurors, and Professional 3 Vendors to whom disclosure is reasonably necessary for this Action and who have 4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (g) the author or recipient of a document containing the information or a 6 custodian or other person who otherwise possessed or knew the information; 7 (h) during their depositions, witnesses, and attorneys for witnesses, in the 8 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 9 requests that the witness sign the form attached as Exhibit A hereto; and (2) they 10 will not be permitted to keep any confidential information unless they sign the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 12 agreed by the Designating Party or ordered by the Court. Pages of transcribed 13 deposition testimony or exhibits to depositions that reveal Protected Material may 14 be separately bound by the court reporter and may not be disclosed to anyone except 15 as permitted under this Stipulated Protective Order; and 16 (i) any mediator or settlement officer, and their supporting personnel, 17 mutually agreed upon by any of the Parties engaged in settlement discussions. 18 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 19 IN OTHER LITIGATION 20 If a Party is served with a subpoena or a court order issued in other litigation 21 that compels disclosure of any information or items designated in this Action as 22 “CONFIDENTIAL,” or if a Party withholds information or items designated in this 23 Action as “CONFIDENTIAL” from its response to a request under the Freedom of 24 Information Act (“FOIA”), 5 U.S.C. § 552, or the California Public Records Act 25 (“PRA”), Cal. Gov’t Code, §§ 6250-6270.7, and the party who served the request 26 subsequently brings an action challenging the withholding of those materials against 27 the Party served with the request, that Party must: 1 (a) promptly notify in writing the Designating Party. Such notification 2 shall include a copy of the subpoena, court order, or request under the FOIA or the 3 PRA; 4 (b) promptly notify in writing the party who caused the subpoena or order 5 to issue in the other litigation, or served the request under the FOIA or the PRA, that 6 some or all of the material covered by the subpoena, order, or request under the 7 FOIA or the PRA is subject to this Stipulated Protective Order. Such notification 8 shall include a copy of this Stipulated Protective Order; and 9 (c) cooperate with respect to all reasonable procedures sought to be 10 pursued by the Designating Party whose Protected Material may be affected. 11 If the Designating Party timely seeks a protective order, the Party served with 12 the subpoena or court order shall not produce any information designated in this 13 action as “CONFIDENTIAL” before a determination by the court from which the 14 subpoena or order issued, or before a determination by the court in any action 15 challenging the withholding of information designated as “CONFIDENTIAL” in 16 response to a request under the FOIA or the PRA, unless the Party has obtained the 17 Designating Party’s permission. The Designating Party shall bear the burden and 18 expense of seeking protection in that court of its confidential material and nothing in 19 these provisions should be construed as authorizing or encouraging a Receiving 20 Party in this Action to disobey a lawful directive from another court. 21 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 22 PRODUCED IN THIS LITIGATION 23 (a) The terms of this Order are applicable to information produced by a 24 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 25 produced by Non-Parties in connection with this litigation is protected by the 26 remedies and relief provided by this Order. Nothing in these provisions should be 27 construed as prohibiting a Non-Party from seeking additional protections. 1 of Toxic Substances Control is required, by a valid discovery request, to produce a 2 Non-Party’s confidential information in its possession, the United States or the 3 California Department of Toxic Substances Control shall comply with any 4 applicable statutes and regulations regarding notice to the Non-Party. 5 (c) In the event that a Party other than the United States or the California 6 Department of Toxic Substances Control is required, by a valid discovery request, to 7 produce a Non-Party’s confidential information in its possession, and the Party is 8 subject to an agreement with the Non-Party not to produce the Non-Party’s 9 confidential information, then the Party shall: 10 (1) promptly notify in writing the Requesting Party and the Non-Party 11 that some or all of the information requested is subject to a confidentiality 12 agreement with a Non-Party; 13 (2) promptly provide the Non-Party with a copy of the Stipulated 14 Protective Order in this Action, the relevant discovery request(s), and a reasonably 15 specific description of the information requested; and 16 (3) make the information requested available for inspection by the 17 Non-Party, if requested. 18 (c) If the Non-Party fails to seek a protective order from this court within 19 14 days of receiving the notice and accompanying information, the Receiving Party 20 may produce the Non-Party’s confidential information responsive to the discovery 21 request subject to this Stipulated Protective Order. If the Non-Party timely seeks a 22 protective order, the Receiving Party shall not produce any information in its 23 possession or control that is subject to the confidentiality agreement with the Non- 24 Party before a determination by the Court. Absent a court order to the contrary, the 25 Non-Party shall bear the burden and expense of seeking protection in this court of its 26 Protected Material. 27 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 1 Protected Material to any person or in any circumstance not authorized under this 2 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 3 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 4 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 5 persons to whom unauthorized disclosures were made of all the terms of this Order, 6 and (d) request such person or persons to execute the “Acknowledgment and 7 Agreement to Be Bound” that is attached hereto as Exhibit A. 8 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 9 PROTECTED MATERIAL 10 When a Producing Party gives notice to Receiving Parties that certain 11 inadvertently produced material is subject to a claim of privilege or other protection, 12 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 13 Procedure 26(b)(5)(B). 14 11.1 This Order invokes Rules 16(b) and 26(c) of the Federal Rules of Civil 15 Procedure, and is entered pursuant to Rule 502(d) of the Federal Rules of Evidence 16 and the Court’s inherent authority. This Order shall be interpreted to provide the 17 maximum protection allowed to the disclosing Party by Rule 502(d) of the Federal 18 Rules of Evidence. Under this Order, the provisions in Rule 502(b) of the Federal 19 Rules of Evidence do not apply to unintentionally disclosed communications or 20 information subject to a claim of attorney-client privilege or attorney work product 21 protection in this litigation (“Disclosed Protected Information”). However, if for 22 any reason, a Court finds that this Order is inapplicable to Disclosed Protected 23 Information, then Rule 502(b) of the Federal Rules of Evidence will apply in its 24 absence. 25 11.2 Each Party is entitled to decide the appropriate degree of care to 26 exercise in reviewing materials for privilege. Irrespective of the care that is actually 27 exercised in reviewing materials for privilege, the Court hereby orders pursuant to 1 communications or information subject to a claim of attorney-client privilege or 2 attorney work product protection will not constitute or be deemed a waiver or 3 forfeiture—in this or any other federal or state litigation, government administrative 4 proceeding, or other inquiries (e.g., Freedom of Information Act request, subpoena 5 duces tecum, etc.)—of any claims of attorney-client privilege or work product 6 protection that the Producing Party would otherwise be entitled to assert with 7 respect to the Disclosed Protected Information and its subject matter. 8 11.3 As to privileges other than the attorney-client privilege and work 9 product protection (i.e., privileges not addressed by Rule 502(d) of the Federal Rules of Evidence), the Court further orders that because expedited or truncated 10 privilege review is likely necessary for the just, speedy, and inexpensive resolution 11 of this matter, the disclosure of privileged or protected information or documents in 12 discovery conducted in this litigation will be deemed unintentional, inadvertent, and 13 compelled by the Court-ordered discovery schedule in this case. Such disclosure 14 will not constitute a waiver of the Producing Party’s right to claim any privilege or 15 protection, including without limitation the deliberative process privilege, which 16 would have applied to the information or documents or their subject matter but for 17 the disclosure, provided only that the Party disclaiming waiver employed procedures 18 reasonably designed to screen out privileged materials. 19 11.4 Regardless of whether the procedures to screen out privileged or 20 protected materials were reasonable, the Parties shall not argue, in this forum or any 21 other, that any privileges or work product protections are waived as a result of the 22 disclosures in this litigation. 23 11.5 If a Party determines that it has produced a document upon which it 24 wishes to make a claim of privilege, the Producing Party shall give all counsel of 25 record notice in writing of the claim of privilege. The notice must identify each 26 such document and the date it was produced. If the Producing Party claims that only 27 a portion of a document is privileged, the Producing Party shall provide, along with 1 privileged portions redacted. Any Party that complies with this Paragraph will be 2 deemed to have taken reasonable steps to rectify disclosures of privileged or protected information or materials. 3 11.6 If a Party identifies a document that appears on its face or in light of 4 facts known to the Party to be subject to another Party’s claim of privilege, the Party 5 identifying the potential claim of privilege is under a good-faith obligation to notify 6 the Party holding the potential claim of privilege within ten (10) business days of 7 making such a determination. Such notification will not waive the identifying 8 Party’s ability to subsequently challenge any assertion of privilege with respect to 9 the identified document. If the Party holding the potential claim of privilege wishes 10 to assert a claim of privilege, it shall provide notice in accordance with Paragraph 11 11.5 above. 12 11.7 Upon receiving notice of a claim of privilege on a produced document, 13 the receiving Party shall, in accordance with Rule 26(b)(5)(B) of the Federal Rules 14 of Civil Procedure, return, sequester, or destroy the specified information and any 15 copies it has within ten (10) business days of receipt of the assertion of privilege, 16 and shall not use or disclose the information, except as provided by Rule 17 26(b)(5)(B) of the Federal Rules of Civil Procedure, until the claim is resolved. The 18 receiving Party shall provide a certification of counsel that all such privileged or 19 protected documents or information has been returned, sequestered, or destroyed. 20 Copies of privileged or protected documents or information that have been stored on 21 electronic media that is not reasonably accessible, such as disaster recovery backup 22 media, are adequately sequestered as long as they are not restored; if such data is 23 restored, the receiving Party shall take steps to re-sequester the restored information. 24 If the receiving Party disclosed the information before being notified, it shall take 25 reasonable steps to prevent further use of such information until the claim is 26 resolved. 27 1 Paragraphs 11.6 or 11.7 above. 2 11.9 If a Party wishes to dispute a claim of privilege asserted under this 3 Order, such Party shall move the Court for an order compelling disclosure of the 4 information. The Party shall follow the procedures described in Rule 26(b)(5)(B) of 5 the Federal Rules of Civil Procedure and shall not assert, as a ground for compelling 6 disclosure, the fact or circumstances of the disclosure. Pending resolution of the 7 motion, the Parties shall not use the challenged information for any other purpose 8 and shall not disclose it to any person other than those required by law to be served 9 with a copy of the sealed motion. 10 11.10 Nothing in this Stipulation and Order overrides any attorney’s ethical 11 responsibilities to refrain from examining or disclosing materials that the attorney knows or reasonably should know to be privileged and to inform the Producing 12 Party that such materials have been produced. 13 11.11 The Party wishing to assert a claim of privilege retains the burden, 14 upon challenge pursuant to Paragraph 11.9, of establishing the applicability of the 15 claimed privilege. 16 11.12 This Order does not preclude a Party from voluntarily waiving any 17 claims of privilege. The provisions of Rule 502(a) of the Federal Rules of Evidence 18 apply when a Party uses privileged information to support a claim or defense. 19 12. MISCELLANEOUS 20 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 21 person to seek its modification by the Court in the future. 22 12.2 Right to Assert Other Objections. By stipulating to the entry of this 23 Stipulated Protective Order, no Party waives any right it otherwise would have to 24 object to disclosing or producing any information or item on any ground not 25 addressed in this Stipulated Protective Order. Similarly, no Party waives any right 26 to object on any ground to use in evidence of any of the material covered by this 27 Stipulated Protective Order. 1 12.3 Filing Protected Material. A Party that seeks to file under seal any 2 Protected Material must comply with Local Civil Rule 79-5. Protected Material 3 may only be filed under seal pursuant to a court order authorizing the sealing of the 4 specific Protected Material at issue. If a Party’s request to file Protected Material 5 under seal is denied by the Court, then the Receiving Party may file the information 6 in the public record unless otherwise instructed by the Court. 7 13. FINAL DISPOSITION 8 After the final disposition of this Action, as defined in paragraph 4, within 60 9 days of a written request by the Designating Party, each Receiving Party must return 10 all Protected Material to the Producing Party or destroy such material. As used in 11 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 12 summaries, and any other format reproducing or capturing any of the Protected 13 Material. Whether the Protected Material is returned or destroyed, the Receiving 14 Party must submit a written certification to the Producing Party (and, if not the same 15 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 16 (by category, where appropriate) all the Protected Material that was returned or 17 destroyed and (2) affirms that the Receiving Party has not retained any copies, 18 abstracts, compilations, summaries or any other format reproducing or capturing any 19 of the Protected Material. Notwithstanding this provision: (i) the United States is 20 authorized to retain federal records as required by the Federal Records Act, 44 21 U.S.C. § 3101 et seq.; (ii) the California Department of Toxic Substances Control is 22 authorized to retain state records as required by the State Records Management Act, 23 California Government Code § 12270 et seq.; (iii) Counsel are entitled to retain an 24 archival copy of all pleadings, motion papers, trial, deposition, and hearing 25 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 26 reports, attorney work product, and consultant and expert work product, even if such 27 materials contain Protected Material; and (iv) Parties are not required to destroy or 1 material is deleted from active data systems in the event that the disaster media is 2 restored. Any such archival copies that contain or constitute Protected Material 3 remain subject to this Stipulated Protective Order as set forth in Section 4 4 (DURATION). 5 14. VIOLATION 6 Any violation of this Order may be punished by appropriate measures including, 7 without limitation, contempt proceedings and/or monetary sanctions. 8 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 9 10 DATED: January 14, 2020 11 12 UNITED STATES OF AMERICA 13 /s/ Devon A. Ahearn Devon A. Ahearn 14 Gabriel M. Allen 15 Leslie Coleman Patricia L. Hurst 16 Genevieve Parshalle 17 Daniel S. Smith Environmental Enforcement Section 18 Environment & Natural Resources Division 19 United States Department of Justice Attorneys for Plaintiff the United States 20

21 CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL 22 23 /s/ Megan Hey 24 Megan Hey Deputy Attorney General 25 California Attorney General’s Office 26 Attorney for Plaintiff the State of California on behalf of the California Department of Toxic Substances Control 27 1 || DATED: January 14, 2020 2 3 LATHAM & WATKINS LLP 4 ll /s/ Kelly E. Richardson 5 || Kelly E. Richardson ‘ Attorneys for Defendant Montrose Chemical Corporation of California

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 8 9 || /s/ Stacey E. Kray Stacey E. Kray 10 Attorneys for Defendant 21° Century Fox America, Inc. 11 12 | FOUNDATION LAW GROUP 13 14 || s/Gregg D. Zucker Gregg D. Zucker 15 Attorney for Defendant Stauffer Management Company for itself and as attorney-in- 16 || fact for Bayer CropScience, Inc. 17 18 19 20 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 21 22 || DATED: February 4, 2020 23 0 Up 25 GAIL J. STANDISH 26 || UNITED STATES MAGISTRATE JUDGE 27 28

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on [date] in the case of United States of America, et al. v. Montrose Chemical 9 Corporation of California, et al., 2:90-cv-03122 DOC(GJSx). I agree to comply 10 with and to be bound by all the terms of this Stipulated Protective Order and I 11 understand and acknowledge that failure to so comply could expose me to sanctions 12 and punishment in the nature of contempt. I solemnly promise that I will not 13 disclose in any manner any information or item that is subject to this Stipulated 14 Protective Order to any person or entity except in strict compliance with the 15 provisions of this Order. I further agree to submit to the jurisdiction of the United 16 States District Court for the Central District of California for enforcing the terms of 17 this Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ [print 19 or type full name] of _______________________________________ [print or type 20 full address and telephone number] as my California agent for service of process in 21 connection with this action or any proceedings related to enforcement of this 22 Stipulated Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27