1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DON CLEVELAND, et al., Case No.: 19-cv-02141-JM-JLB

12 Plaintiffs,

ORDER GRANTING

13 v. PLAINTIFFS/COUNTER-

DEFENDANTS MOTION TO DE-

14 LUDWIG INSTITUTE FOR CANCER

DESIGNATE ONE PORTION OF

RESEARCH LTD, et al., 15 ONE DOCUMENT Defendants. 16 [ECF Nos. 111, 112] 17

AND RELATED COUNTERCLAIM.

18 19 20 Before the Court is a Motion to De-Designate One Portion of One Document filed 21 by Plaintiffs/Counter-Defendants Don Cleveland, Arshad Desai, Frank Furnari, Richard 22 Kolodner, Paul Mischel, Karen Oegema and Bing Ren (collectively, “Plaintiffs”). (ECF 23 Nos. 111, 112.) Plaintiffs seek to de-designate one portion of one document 24 (LUDWIG0001443), specifically the statement that “overall the Branch is being seen as 25 post-mature.” (ECF No. 111-1 at 2.) 26 Defendants Ludwig Institute for Cancer Research Ltd. (the “Institute” or “Ludwig”), 27 Chi Van Dang, Edward A. McDermott, Jr., and John L. Notter (collectively, “Defendants”) 28 filed an opposition. (ECF No. 116.) Plaintiffs filed a reply. (ECF No. 117.) Upon review 1 of the motion, the opposition, the reply, and all supporting documents, the Court GRANTS 2 the Motion to De-Designate. 3 I. BACKGROUND 4 A. Ludwig I 5 On November 7, 2019, Plaintiffs commenced the above-captioned action, 6 Cleveland, et al. v. Ludwig Institute for Cancer Research Ltd, et al., Case No. 19-cv-02141- 7 JM-JLB (S.D. Cal.) (“Ludwig I”). (ECF No. 1.) On July 8, 2020, Plaintiffs filed a Second 8 Amended Complaint (“SAC”), the operative complaint. (ECF No. 26.) 9 According to the SAC, Plaintiffs are internationally acclaimed cancer research 10 scientists and physicians. (SAC ¶ 1.) Ludwig is an international nonprofit organization 11 dedicated to finding a cure for cancer that operates multiple cancer research branches. (Id. 12 ¶¶ 1, 142.) In 1991, Ludwig entered into an “Affiliation Agreement” (“the AA”) with the 13 University of California at San Diego (“UCSD”) to establish a San Diego Branch (“the 14 Branch”). (Id. ¶ 51.) Ludwig agreed to conduct “active” and “continuous” medical 15 research to “discover, develop, or verify knowledge related to causes, diagnoses, treatment, 16 prevention and control of cancer.” (Id. ¶ 53.) Ludwig also agreed to “bear the costs directly 17 related to conducting the research program.” (Id. ¶ 62.) The term of the AA is coterminous 18 with a lease agreement for research facilities between Ludwig and UCSD, which allows 19 Ludwig to terminate the lease no earlier than December 31, 2023. (Id. ¶¶ 4, 16, 56.) In 20 addition to leasing its facilities to Ludwig, UCSD agreed to: (1) grant privileges for the 21 practice of medicine at its hospital to qualified members of the medical staff at the Branch; 22 (2) grant “academic recognition and titles” to qualified Ludwig employees; and (3) make 23 full time equivalency positions available for Ludwig employees. (Id. ¶ 154.) 24 Between 1996 and 2016, Ludwig hired Plaintiffs to work at the Branch. (Id. ¶¶ 26– 25 32.) In 2018, Ludwig announced that it would “cease funding the Branch and otherwise 26 halt the ‘continuous active conduct of medical research’ at the Branch.” (Id. ¶ 15.) 27 Effective January 1, 2020, Ludwig “terminated all funding for Plaintiffs’ laboratories.” (Id. 28 ¶ 18.) However, “Ludwig continues to fund at least part of the rent due [to UCSD] and it 1 continues to pay the Plaintiffs’ own salaries and benefits, but nothing more.” (Id.) As a 2 result, Plaintiffs’ “[l]aboratories and ongoing translational research programs have ceased 3 or substantially curtailed ongoing research projects, except to the extent that they have 4 access to outside grants.” (Id.) 5 In their SAC, Plaintiffs asserted the following claims against Ludwig: (1) breach of 6 the AA; (2) breach of Plaintiffs’ Intellectual Property (“IP”) agreements; (3) breach of 7 Plaintiffs’ lab contracts; (4) breach of the implied covenant of good faith and fair dealing; 8 (5) promissory estoppel under the AA; (5) declaratory relief; and (6) false light. (SAC ¶¶ 9 145–70, 182–303.) Plaintiffs also bring a claim against all Defendants for defamation per 10 se. (Id. ¶¶ 171–81.) On November 25, 2020, the Honorable Jeffrey T. Miller dismissed 11 Plaintiffs’ claims for breach of the AA and breach of Plaintiffs’ IP agreements. (ECF No. 12 32 at 28.) He also dismissed Plaintiffs’ declaratory relief claim with respect to Plaintiffs’ 13 claims based on the AA and IP agreements, and their claim for breach of the implied 14 covenant in the AA and lab contracts. (Id.) 15 B. Ludwig II 16 On May 5, 2021, Plaintiffs filed a separate lawsuit against Ludwig: Cleveland, et al. 17 v. Ludwig Institute for Cancer Research Ltd., Case No. 21-cv-00871-JM-JLB (S.D. Cal.) 18 (“Ludwig II”). (Ludwig II, ECF No. 1.) In Ludwig II, Plaintiffs bring claims against 19 Ludwig for: (1) retaliation in violation of California Government Code § 12940(h); (2) age 20 discrimination under the Fair Employment and Housing Act (“FEHA”); (3) wrongful 21 adverse employment action in violation of public policy; (4) failure to timely pay wages; 22 and (5) violation of California’s unfair competition laws. (Id. at 13–21.) Kolodner also 23 brings a separate claim for retaliation in violation of California Labor Code § 1102.5. (Id. 24 at 12–13.) 25 On May 12, 2021, Ludwig II was low number transferred to Judge Miller and the 26 undersigned judge for all further proceedings. (Ludwig II, ECF No. 4.) On July 2, 2021, 27 Judge Miller denied Plaintiffs’ motion to consolidate Ludwig I and Ludwig II. (Ludwig II, 28 ECF No. 13.) On July 6, 2021, Ludwig filed a motion to dismiss all claims in the Ludwig II 1 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Id., ECF No. 14.) On 2 January 7, 2022, Judge Miller granted in part and denied in part Ludwig’s motion to 3 dismiss. (Id., ECF No. 18.) As pertinent here, Judge Miller granted Ludwig’s motion to 4 dismiss Plaintiff’s age discrimination claim under FEHA, with leave to amend. (Id.) 5 C. Protective Order 6 On February 19, 2021, the parties filed a joint motion for entry of stipulated 7 protective order in Ludwig I. (ECF No. 44.) The proposed protective order was largely 8 based on the Southern District of California’s model protective order, which is available 9 on the district court’s website. The proposed protective order also contained the 10 undersigned judge’s required language, as set forth in her Civil Chambers Rules. See J. 11 Burkhardt Civ. Chambers R. § VI.B. On February 22, 2021, the Court granted the joint 12 motion and entered the parties’ stipulated protective order (“Protective Order”). (ECF No. 13 45.) 14 D. April 2018 Minutes 15 On January 14, 2020, Ludwig initially produced the minutes of an April 24, 2018 16 meeting of Ludwig’s Board of Directors (the “April 2018 Minutes”), with the designation 17 of “Outside Counsel Eyes Only.” (ECF No. 105 at 8–9.) At Plaintiffs’ request, Defendants 18 reproduced the April 2018 Minutes with a reduced “Confidential” designation on 19 March 8, 2021. (Id. at 9.) The April 2018 Minutes contain the statement that “overall the 20 Branch is being seen as post-mature.” (ECF No. 111-1 at 2.) 21 On May 5, 2021, Plaintiffs commenced Ludwig II and referenced, as well as quoted 22 from, the April 2018 Minutes in their Complaint. (Ludwig II, ECF No. 1.) Specifically, 23 Plaintiffs stated the following in their Complaint under “General Allegations”: 24 Plaintiffs Kolodner and Cleveland first began their work at the Branch 25 in 1997 and 1995, respectively and have been closely identified with the Branch and have led its efforts for decades. Plaintiffs Kolodner and Cleveland 26 were each more than 40 years old at all times in 2018 and later. The Board 27 of Ludwig made a decision to close the Branch at a meeting held in April 2018. Minutes of that board disclose the Board’s discussion that the 28 1 negatively as “post-mature.” On information and belief, the Board’s reference to the Branch being “post-mature” referred to the Plaintiffs’ ages, 2 in particular, the Board deemed that following the retirement of Webster 3 Cavenee, the Branch’s founding Director, the remaining founding Branch leadership, Kolodner and Cleveland, were “post-mature,” that is, older than 4 Ludwig found to be desirable. Thus, a principal motivating factor for the 5 Board’s decision to close the Branch and to convert the Plaintiffs’ membership terms from rolling terms to fixed terms was predicated upon 6 wrongful discriminatory intent. 7 8 (Ludwig II, ECF No. 1, ¶ 29 (emphasis added).) 9 In support of their age discrimination claim against Ludwig, Plaintiffs further stated: 10 Plaintiffs, each of whom was more than 40 years old at all times in 2018 11 and later, are informed and believed that Ludwig sought to terminate each of their rolling term appointments, and convert them to fixed terms resulting in 12 their employment ending before the Closure Date, because of their age. 13 Minutes of Ludwig’s Board from April 2018 precipitating the decision to close the Branch cited that the Branch (which is made up only of 14 Plaintiffs’ laboratories) is seen as “post-mature.” On information and 15 belief, the reference to the Board being “post-mature” in fact referred to the Plaintiffs, and in particular the leaders of the Branch, Mssrs. Kolodner and 16 Cleveland, and that they were over forty years old, which was deemed 17 undesirable by the Board. On information and belief, the Board’s decision to close the Branch was motivated, in part, by discriminatory intent. 18 19 (Id. ¶ 62 (emphasis added).) 20 On July 6, 2021, in its motion to dismiss, Ludwig used the term from the April 2018 21 Minutes, “post-mature,” on multiple occasions. (Ludwig II, ECF No. 14.) With respect to 22 the April 2018 Minutes, Ludwig stated: 23 Third, Plaintiffs’ discrimination claim fails because their theory of 24 discrimination is based on a single, standalone comment made during a board meeting that the San Diego Branch (not any individuals associated 25 with it) as “post-mature.” While Plaintiffs try to recast this remark as having 26 something to do with their ages, even Plaintiffs concede that the statement was a “reference to the Branch,” which had been in operation for nearly 30 27 years since its opening in 1991. Compl. ¶ 62. Plaintiffs have therefore failed 28 to allege facts to suggest a discriminatory motive and cannot satisfy the prima 1 facie elements for this cause of action. See Ryan v. Santa Clara Valley Transp. Auth., No. 20-CV-02981-LB, 2017 WL 1175596, at *13-14 (N.D. 2 Cal. Mar. 30, 2017). 3 . . . 4 Here, Plaintiffs allege that the Institute discriminated against them by 5 seeking to convert their rolling term appointments to fixed-term appointments based on their age. Plaintiffs have not alleged (nor can they) that they had a 6 right to perpetual employment for the remainder of their natural lives; just 7 because an end-date to their contracts was put in place does not mean that they were the victims of age discrimination. In fact, their only allegation of alleged 8 discriminatory animus by Ludwig is an out-of-context comment in the 9 minutes of Ludwig’s April 2018 Board meeting, remarking “that the Branch . . . is seen as ‘post-mature.’” Compl. ¶ 62. Accordingly, Plaintiffs’ 10 age discrimination claim rests wholly on the use of the phrase “post-mature” 11 in the April 2018 Board Minutes. But Plaintiffs plead no facts explaining what that term means, much less facts that its use here supports an inference 12 of discriminatory intent directed at Plaintiffs.8 13 [Footnote 8: Indeed, the only widely available definition of the term “post-mature” refers to newborn babies who are born more than 42 weeks 14 after conception—i.e., after the “late term” of 41 to 42 weeks. See 15 https://www.stanfordchildrens.org/en/topic/default?id=postmaturity-in- thenewborn-90-P02399 (June 24, 2021).] 16 17 (Ludwig II, ECF No. 14 at 14, 25 (emphasis added).) 18 Although Plaintiffs did not use the term “post-mature” in their opposition, Ludwig 19 used it eight times in its reply: 20 The Opposition’s argument that the phrase “post-mature” is inherently 21 ageist fares no better. A single stray remark about a decades-old research branch (the San Diego Branch) is plainly insufficient to support an inference 22 of age discrimination under FEHA, and the Opposition points to no authority 23 to the contrary. . . . 24 The parties agree that, to raise a prima facie case of age discrimination, 25 Plaintiffs needed to allege circumstances reasonably suggesting age 26 discrimination—whether replacement by younger employees or otherwise. They unquestionably fail to do so. Instead, the only fact on which Plaintiffs 27 rely is a single stray remark in Board minutes to the effect that the Branch was 28 “seen as ‘post-mature.’” Compl. ¶ 62. Plaintiffs contend that Ludwig’s 1 reference to a medical definition of the term “post-mature” in its Memorandum is somehow a concession by Ludwig that the “Board referred 2 to the San Diego Branch as past its maturity.” Opp. at 21. That makes no 3 sense and, in any event, does not support Plaintiffs’ claim. Ludwig merely observed that “the only widely available definition of the term ‘post-mature 4 refers to newborn babies who are born more than 42 weeks after conception.” 5 Memo. at 15 n.8. Plaintiffs provide no explanation, much less authority, as to how this definition supports their claims of age discrimination, other than to 6 observe (bizarrely and without citation) that babies born late have “wrinkled 7 skin and other abnormalities.” Opp. at 21.[] Of course, FEHA does not protect newborns. See, e.g., Ryan v. Santa Clara Valley Transp. Auth., 2017 WL 8 1175596, at *13 (N.D. Cal. Mar. 30, 2017) (prima facie FEHA age 9 discrimination requires plaintiff to be forty or over). 10 Nor can Plaintiffs resuscitate their age discrimination claim with conspiracy theories about to whom the term “post-mature” applied or what 11 it means because the Complaint alleges no facts as to the meaning or 12 application. On this front, Plaintiffs contend that because “the Branch is not a sentient being” (Opp. at 21), the remark about its being “post-mature” must 13 have pertained to them. This is absurd. The Branch was opened in 1991. See 14 Compl. ¶ 1. Calling it post-mature, mature, or even old is not discriminatory. It is an accurate statement about a nearly 30-year old institution—not a 15 reference to the ages of the people who worked there. In any event, Plaintiffs’ 16 reliance on the ambiguous term “post-mature” as their sole factual basis in support of a prima facie case of age discrimination cannot carry the day. See 17 Memo. at 4. That single remark, without any further factual allegations of 18 disparate treatment versus younger workers, replacement by younger workers, or some other indication of discriminatory conduct and intent, cannot support 19 Plaintiffs’ claim. 20 21 (Ludwig II, ECF No. 16 at 5–6, 12–13.) 22 In ruling on Ludwig’s motion to dismiss, Judge Miller stated the following with 23 respect to Plaintiffs’ age discrimination claim: 24 The FEHA makes it unlawful for an employer, because of “age . . . to 25 discharge [a] person from employment . . . or to discriminate against [a] person in compensation or in terms, conditions, or privileges of employment.” 26 Cal. Gov’t Code § 12940(a). 27 Generally, to establish a prima facie case of age discrimination under the FEHA, a plaintiff must provide evidence that: “(1) he [or she] was a 28 1 member of a protected class, (2) he [or she] was qualified for the position . . . sought or was performing competently in the position . . . held, (3) he [or she] 2 suffered an adverse employment action, such as termination, demotion, or 3 denial of an available job, and (4) some other circumstance suggests discriminatory motive.” Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 355 4 (2000). “The specific elements of a prima facie case may vary depending on 5 the particular facts.” Id. at 355. 6 In their Complaint, Plaintiffs allege that they were all 40 years or older when they were informed, in 2018, that Defendant was seeking to convert 7 their rolling employment appointments to fixed terms. Compl. at ¶ 62. As 8 evidence of discriminatory motive, Plaintiffs allege that in a 2018 Board meeting, Defendant’s Board “cited” the San Diego Branch as being “seen 9 as ‘post-mature.’” Id. Plaintiffs further allege “[o]n information and belief” 10 this reference to “post-mature” was directed to the leaders of the San Diego Branch being over 40 years old, “which was deemed undesirable by the 11 Board.” Id. 12 In their briefings, the crux of the Parties’ dispute regarding Plaintiffs’ 13 age discrimination claims revolves around whether Plaintiffs have plausibly alleged Defendant acted with discriminatory motive. Specifically, Defendant 14 contends Plaintiffs have not pled any facts explaining what the term “post- 15 mature” means or how the usage of this term can support an inference of discriminatory intent directed at Plaintiffs. (Doc. No. 14 at 25). 16 The court agrees. Here, Plaintiffs have not alleged sufficient facts to 17 give rise to a plausible claim of age-based discrimination under the FEHA. Plaintiffs’ vague allegation Defendant’s Board perceived the San Diego 18 Branch as “post-mature,” without more, does not give rise to a plausible 19 inference of discriminatory motive. Centrally, Plaintiffs do not identify who made this comment, whether those individuals had any role in converting 20 Plaintiffs’ rolling employment terms to fixed terms, the context in which these 21 comments were made, or even whether these purportedly age-related statements were directed at Plaintiffs. Instead, Plaintiffs merely hazard the 22 Board’s comment was made about them before taking yet another leap of logic 23 and concluding the Board’s comment plausibly demonstrates Defendant considered Plaintiffs’ ages “undesirable.” 24 In this case, the inferences Plaintiffs request that the court draw 25 between the Board’s view the San Diego Branch was “seen as ‘post-mature’” 26 and Defendant’s alleged discriminatory animus is simply too speculative, even on a motion to dismiss. See Hartman v. Gilead Scis., Inc. (In re Gilead 27 Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008) (the court is not required 28 1 to accept “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”). 2 For these reasons, the court GRANTS Defendant’s Motion to Dismiss 3 Plaintiffs’ Third Cause of Action. 4 5 (Ludwig II, ECF No. 18 at 11–13 (emphasis added).) 6 II. LEGAL STANDARD 7 As a general rule, the public is permitted “access to litigation documents and 8 information produced during discovery.” Phillips ex rel. Ests. of Byrd v. Gen. Motors 9 Corp., 307 F.3d 1206, 1210 (9th Cir. 2002); see also San Jose Mercury News, Inc. v. U.S. 10 Dist. Ct.—N. Dist. (San Jose), 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established 11 that the fruits of pretrial discovery are, in the absence of a court order to the contrary, 12 presumptively public.”). Under Federal Rule of Civil Procedure 26, however, “[t]he court 13 may, for good cause, issue an order to protect a party or person from annoyance, 14 embarrassment, oppression, or undue burden or expense.” Fed .R .Civ. P. 26(c)(1). The 15 party opposing disclosure has the burden of proving “good cause,” which requires a 16 showing, for each particular document the party seeks to protect, that “specific prejudice 17 or harm will result if no protective order is granted.” Foltz v. State Farm Mut. Auto. Ins. 18 Co., 331 F.3d 1122, 1130 (9th Cir. 2003). 19 While courts may make a finding of good cause before issuing a protective order, a 20 court need not do so where, as here, the parties stipulate to such an order. See In re Roman 21 Cath. Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011). “When the 22 protective order was a stipulated order and no party ha[s] made a good cause showing, then 23 the burden of proof . . . remain[s] with the party seeking protection.” Id. (internal quotation 24 marks and citation omitted) (alteration in original). “If a party takes steps to release 25 documents subject to a stipulated order, the party opposing disclosure has the burden of 26 establishing that there is good cause to continue the protection of the discovery material.” 27 Id. 28 /// 1 In considering whether a document should continue to receive protection under the 2 protective order, a court must proceed in two steps. Id. First, the court must determine 3 whether “particularized harm will result from disclosure” to the public of information in 4 the document. Id. (citing Phillips, 307 F.3d at 1211). “Broad allegations of harm, 5 unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) 6 test.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (quoting 7 Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd Cir. 1986)). Rather, the person 8 seeking protection from disclosure must “allege specific prejudice or harm.” See id. 9 Second, if the court finds particularized harm will result from disclosure of the discovery 10 documents, then it must proceed to balance “the public and private interests to decide 11 whether [maintaining] a protective order is necessary.” Phillips, 307 F.3d at 1211. The 12 Ninth Circuit has directed courts doing this balancing to consider the factors identified by 13 the Third Circuit in Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). 14 See In re Roman Cath. Archbishop of Portland in Oregon, 661 F.3d at 424. 15 “But even when the factors in this two-part test weigh in favor of protecting the 16 discovery material (i.e., where the court determines that disclosure of information may 17 result in ‘particularized harm,’ and the private interest in protecting the discovery material 18 outweighs the public interest in disclosure), a court must still consider whether redacting 19 portions of the discovery material will nevertheless allow disclosure.” Id. at 425 (citing 20 Foltz, 331 F.3d at 1136–37). “Accordingly, in determining whether to protect discovery 21 materials from disclosure under Rule 26(c), a court must not only consider whether the 22 party seeking protection has shown particularized harm, and whether the balance of public 23 and private interests weighs in favor, but also keep in mind the possibility of redacting 24 sensitive material.” Id. 25 III. DISCUSSION 26 In their motion to de-designate, Plaintiffs ask the Court to remove Defendants’ 27 confidentiality designation from “one portion” of the April 2018 Minutes, particularly the 28 statement that “overall the Branch is being seen as post-mature.” (ECF No. 111-1 at 2.) 1 Here, the parties stipulated to a blanket protective order. (See ECF Nos. 44, 45.) As such, 2 Defendants have never made a specific showing of good cause with respect to the April 3 2018 Minutes. Therefore, as the party opposing disclosure, they have the burden of 4 showing that “specific prejudice or harm will result” if the Protective Order is not 5 maintained with respect to the disputed portion of the April 2018 Minutes. See Foltz, 331 6 F.3d at 1130. 7 Defendants argue that the Institute’s Minutes generally “contain confidential 8 business information the public disclosure of which would cause harm to the Institute.” 9 (ECF No. 116 at 5.) Mr. McDermott, the Institute’s CEO, states that the Institute’s board 10 meetings are conducted under a “generally understood expectation of confidentiality to 11 encourage open and frank discussion.” (ECF No. 116-1, Supp. Decl. of Edward A. 12 McDermott, Jr. (“McDermott Decl.”), ¶ 6.) Mr. McDermott fears that if the Institute’s 13 Board members, the majority of whom are independent and held in very high regard in 14 their fields, believed the meetings would not be kept confidential, it would “chill the candid 15 discussion.” (Id. ¶ 7.) Mr. McDermott further explains that the Board is advised by a 16 Scientific Advisory Committee (“SAC”), which “reviews and assesses the impact of the 17 research being conducted at its labs all over the world.” (Id. ¶ 8.) The SAC review process 18 is kept confidential to encourage open and candid engagement. (Id.) In addition to the 19 need to protect frank discussion, Mr. McDermott claims the Institute has an economic 20 interest in keeping the minutes of its Board meetings confidential. (Id. ¶ 9.) 21 Mr. McDermott states that the “Board’s decisions regarding setting budgets, allocating 22 resources among branches and other endeavors, and the like is highly sensitive.” (Id.) 23 With respect to the April 2018 Minutes specifically, Mr. McDermott states that they 24 contain a detailed discussion of the SAC’s 2018 review of the Institute’s Branches, which 25 is “highly sensitive and kept private in order to encourage open discussion.” (Id.) He 26 claims the portion of the April 2018 Minutes Plaintiffs wish to de-designate “memorializes 27 certain observations made in confidence by Board members, as informed by the SAC 28 report, regarding the San Diego Branch.” (Id. ¶ 11.) Mr. McDermott contends that it may 1 do more harm to the Institute if only a snippet of the conversation is disclosed publicly, as 2 statements may be taken out of context. (Id.) 3 The statement Plaintiffs wish to de-designate is a portion of a sentence within a 4 larger paragraph concerning the SAC’s observations about the San Diego Branch. This 5 statement was repeated time and again in filings in Ludwig II without any attempt by 6 Defendants to strike or seal the pleadings or otherwise maintain the confidentiality of the 7 statement in their filings.1 Rather, Ludwig itself frequently repeated the word “post- 8 mature” in its filings, without sealing or redaction, even when Plaintiffs made a belated 9 attempt to curb its use. Although Plaintiffs used portions of the April 2018 Minutes in 10 violation of the Protective Order issued in this case, Ludwig multiplied and amplified the 11 public disclosure of the language at issue. 12 Defendants argue that the fact Ludwig repeated the term “post-mature” in their 13 motion to dismiss is “irrelevant.” (ECF No. 116 at 11–12.) However, given the history 14 laid out above, the Court finds those arguments unpersuasive. Ludwig’s own treatment of 15 the relevant language from the April 2018 Minutes undermines their assertions of the 16 importance of confidentiality. In sum, Defendants have not demonstrated good cause to 17 maintain the confidentiality of the portion of the April 2018 Minutes that states “overall 18 the Branch is being seen as post-mature.” Cf. Christopher Williams v. City of Long Beach 19 et al., No. 2:19-CV-05929-ODW-AFMx, 2021 WL 6497197, at *2 (C.D. Cal. Nov. 23, 20 21 22 1 On June 10, 2021, over one month after the Ludwig II complaint was filed, 23 Defendants raised the issue in this case of Plaintiffs’ improper disclosure in violation of the Protective Order in a Joint Statement of Issues in Dispute Pursuant to Section V(B) of 24 Civil Chambers Rules. (ECF No. 69.) After a discovery conference related to the dispute 25 (ECF No. 71), the Court invited, and received, briefing from the parties. (See ECF No. 72.) Defendants requested monetary sanctions as well as an order “precluding Plaintiffs 26 from using the confidential April 2018 Board meeting minutes in evidence or argument in 27 connection with their new action.” (ECF No. 80-1 at 4.) Defendants did not seek to strike the offending language from the publicly filed Ludwig II complaint or from their own 28 1 2021) (finding the defendants waived the confidentiality of documents included in joint 2 exhibit lists by, inter alia, failing to raise the confidentiality issue for over ten months): 3 || Littlejohn v. BIC Corp., 851 F.2d 673, 680 (3d Cir. 1988) (“[F]ailure to object to the 4 ||admission into evidence of the documents, absent a sealing of the record, constituted a 5 waiver of whatever confidentiality interests might have been preserved under the 6 [Protective Order].”); Nat’) Polymer Prod., Inc. v. Borg-Warner Corp., 641 F.2d 418, 421 7 ||(6th Cir. 1981) (noting it is a “well-established principle of American jurisprudence that 8 release of information in open trial is a publication of that information and, if no effort 9 ||is made to limit its disclosure, operates as a waiver of any rights a party had to restrict its 10 || further use”).? Accordingly, Plaintiffs’ motion is GRANTED. 11 CONCLUSION 12 For the foregoing reasons, Plaintiffs’ Motion to De-Designate One Portion of One 13 ||Document is GRANTED. Accordingly, the statement that “overall the Branch is being 14 as post-mature” (at Bates Number LUDWIG0001443) is no longer deemed 15 confidential under the Protective Order. The Clerk of Court is directed to unseal ECF 16 111, with the exception of Exhibit A (ECF No. 11-1 at 13-26), which shall remain 17 under seal. 18 IT IS SO ORDERED. 19 || Dated: February 8, 2022 . 20 Hg@ni. Jill L. Burkhardt 21 ed States Magistrate Judge 22 23 24 25 26 See also Vedanti Licensing Ltd., LLC v. Google LLC, No. 3:20-CV-01344-BEN- WVG, 2021 WL 5973060, at *5 (S.D. Cal. Mar. 5, 2021) (finding the attorney-client 27 || privilege or work product immunity attached to documents referenced in the complaint had been waived because the privilege holder did not take reasonable steps to preserve the confidentiality of these documents).