San Francisco — Challenging Confidentiality Designations

Source: https://sf.courts.ca.gov/system/files/general/challenging-confidentiality-designations.pdf

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22 SUPERIOR COURT OF CALIFORNIA

33 COUNTY OF SAN FRANCISCO

44 COMPLEX LITIGATION

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77 CHALLENGING CONFIDENTIALITY DESIGNATIONS

88 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at

99 any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is necessary to

1010 avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or

1111 delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by

1212 electing not to mount a challenge promptly after the original designation is disclosed.

1313 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing

1414 written notice of the designations it is challenging and generally describing the basis for the challenges.

1515 To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the

1616 challenge to confidentiality is being made in accordance with this specific paragraph of the Protective

1717 Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by

1818 conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 10

1919 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its

2020 belief that the confidentiality designation was not proper and must give the Designating Party an

2121 opportunity to review the designated material, to reconsider the circumstances, and, if no change in

2222 designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed

2323 to the next stage of the challenge process only if it has engaged in this meet and confer process first or

2424 establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely

2525 manner.

2626 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention through

2727 the procedure set forth above, they must hold an informal in-person conference with the Court. If the

2828 Parties still cannot resolve the challenge, the Designating Party shall file and serve a motion to retain

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Challenging Confidentiality Designations

11 confidentiality within 10 days of the informal in-person conference. Each such motion must be

22 accompanied by a competent declaration affirming that the movant has complied with the meet and confer

33 requirements imposed in the preceding paragraph. Failure by the Designating Party to timely make such a

44 motion shall automatically waive the confidentiality designation for each challenged designation. In

55 addition, the Challenging Party may file a motion challenging a confidentiality designation at any time if

66 there is good cause for doing so, including a challenge to the designation of a deposition transcript or any

77 portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent

88 declaration affirming that the movant has complied with the meet and confer requirements imposed by the

99 preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the

1010 Designating Party. The Court recommends that the parties obtain a court reporter for the hearing on this

1111 motion. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

1212 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. The

1313 party losing any motion concerning the confidentiality of materials will pay the successful party’s

1414 attorneys’ fees incurred in the making of or opposing the motion if the losing position was not

1515 substantially justified. Unless the Designating Party has waived the confidentiality designation by failing

1616 to file a motion to retain confidentiality as described above, all parties shall continue to afford the material

1717 in question the level of protection to which it is entitled under the Producing Party’s designation until the

1818 court rules on the challenge.

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