“Protective orders are frequently sought to prevent disclosure of documents containing ‘sensitive’ information (e.g., trade secrets, customer lists, etc.). If ‘good cause’ is shown, discovery may be denied altogether or disclosure narrowly limited to certain persons for certain purposes.” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2016) ¶ 8:1456.)

“Parties to civil litigation, recognizing the broad policies favoring discovery, often choose to avoid costly and time-consuming motion practice by entering into stipulations for protective orders that permit production but limit disclosure and use of discovered information deemed by the producing party to contain confidential, proprietary, and/or private information. They thereby defer or obviate the need for specific court determination as to the propriety of designating materials confidential unless and until that designation is challenged.” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 98.)

Legal Standard

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.” (Code of Civ. Proc., §2031.060(a).) “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code of Civ. Proc., §2031.060(b); Fireman's Fund Ins. Co. v. Super. Ct. (1991) 233 Cal.3d 1138, 1141.) The court shall also “limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Code of Civ. Proc., § 2017.02(a); Emerson Electric Co. v. Super. Ct. (1997) 16 Cal.4th 1101, 1110.)

The decision as to whether to enter a protective order lies within the sound discretion of the court. (Raymond Handling Concepts Corp. v. Super. Ct. (1995) 39 Cal.App.4th 584, 588, 591; Meritplan Ins. Co. v. Super. Ct. (1981) 124 Cal.App.3d 237, 242.)

“The state has two substantial interests in regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the legitimate privacy interests of the litigants and third parties. ‘The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of good cause.’ The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.” (Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 317.)

Burden of Proof

The moving party has the burden of showing good cause for protective order. (Emerson Elec. Co. v Super. Ct. (1997) 16 Cal.4th 1101, 1110.) Good cause requires a showing of specific facts demonstrating undue burden or other grounds, and justifying the relief sought. (Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819.)

A party seeking a protective order may be required to make a “factual showing that

1. the documents that it had been ordered to produce contained confidential commercial information or information in which it had any protectable interest or
2. dissemination of the documents to the public would result in injury.”

(Nativi v. Deutsche Bank National Trust Co. (2014) 233 Cal.App.4th 261, 318.)

How a party may show “good cause” is not entirely clear; “[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning” are insufficient. (Nativi v. Deutsche Bank National Trust Co. (2014) 233 Cal.App.4th 261, 318.) “The concept of good cause calls for a factual exposition of a reasonable ground for the sought order.” (Id. at 317.) Facts must be presented by way of admissible evidence, and conclusory statements that the particular relief is “necessary” do not suffice. (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.) If “good cause” is shown, the court can exercise its discretionary power to limit discovery responses to certain persons. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.)

“In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. (Pacific Tel. & Tel. Co. v. Super. Ct. (1970) 2 Cal.3d 161, 172; Pettie v. Super. Ct. (1960) 178 Cal.App.2d 680, 687.) As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. (Pacific Tel. & Tel. Co., supra, 2 Cal.3d at p. 172.) Furthermore, California’s liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. (Id. at p. 173.) In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute.” (Norton v. Super. Ct. (1994) 24 Cal.App.4th 1750, 1761.)

Procedure

Protective orders may be granted on motion of the deponent or any party, or any third person who could be affected by the disclosure (e.g., a nonparty whose privacy would be impaired). (Code of Civ. Proc., § 2025.420(a).) A formal noticed motion and hearing are always required; a protective order cannot be granted ex parte. (St. Paul Fire & Marine Ins. Co. v. Super. Ct. (1984) 156 Cal.App.3d 82, 85-86.)

The motion for protective order must also be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve the matter outside of court. (Code of Civ. Proc., § 2025.420(a).) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel.... Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016.) Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 433-34; Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1437.)