To comply with the terms of the stipulated Protective Order [Doc. No. 14, at p. 6; ¶ 12], plaintiff also submitted an Application to File Materials Under Seal. [Doc. No. 49, at pp. 1-5.] The Application requests that the Court file under seal an un-redacted copy of the Joint Motion [Doc. No. 50] and copies of the challenged documents, which were submitted as exhibits to the Serritella Declaration [Doc. No. 50-1, at pp. 22-115]. If the Court rules in plaintiff's favor, it is requested that the Court file these un-redacted versions of the Joint Motion and exhibits in the Court's record without the protection of a sealing order. [Doc. No. 49, at p. 2; Doc. Nos. 50, 50-1.]

For the reasons outlined more fully below, the Court finds that plaintiff's request for an order striking the “confidential” designations for ten documents produced by defendant during discovery in this case must be DENIED without prejudice. The Court also finds that plaintiff's request to allow the challenged documents to be filed in the public record rather than under seal must be DENIED without prejudice. [Doc. No. 51.] Plaintiff may seek to reveal the challenged documents in the public record if they are submitted to the District Court in connection with a summary judgment motion or as evidence at trial. In addition, the Court finds that plaintiff's Application to File Materials Under Seal must be GRANTED. [Doc. No. 49.]

The Complaint states that plaintiff and defendant National Strength and Conditioning Association (“NSCA”) “are competitors in the fitness industry.” [Doc. No. 1, at p. 2.] According to plaintiff, defendant NSCA and “its long-time peer, the American College of Sports Medicine (the ‘ACSM’), are two pillars of this traditional fitness establishment.” [Doc. No. 1, at p. 2.] Plaintiff, on the other hand, “is a relatively new player in the fitness space” with “a radically different approach” to fitness. [Doc. No. 1, at p. 3.]

Defendant publishes the Journal of Strength and Conditioning Research (“JSCR”). [Doc. No. 1, at pp. 3, 7.] The key allegations in the Complaint are as follows: “In November 2013, the JSCR published a study by Steven T. Devor (an ACSM ‘fellow’), Michael M. Smith, Allan J. Sommer, and Brooke E. Starkoff, entitled ‘Crossfit-based [sic] high intensity power training improves maximal aerobic fitness and body composition’ (the ‘Devor Study’).[1] The Devor Study purported to track a ten-week CrossFit program. While the Devor Study correctly found that CrossFit improved the athletes' fitness levels, it also reported that nine of fifty-four participants (16% of the sample population) dropped out of the program due to ‘overuse or injury.’ That assertion was based on false data.” [Doc. No. 1, at p. 4.] According to the Complaint, it is simply not true that nine participants dropped out of the program because of overuse or injury. [Doc. No. 1, at p. 4.] In addition, plaintiff believes that the false data and information in the Devor Study was “contrived” not only to dissuade people from using CrossFit as a form of exercise but also to dissuade trainers from seeking certification as a CrossFit trainer. [Doc. No. 1, at pp. 4-5.]

*2 The key factual allegations in the Complaint are that defendant published the following false, misleading, and/or deceptive statements about CrossFit's injury rates in the Devor Study: (1) “[N]ine subjects (16% of total recruited subjects) cit[ed] overuse or injury for failing to complete the [CrossFit] program and finish follow up testing;” and (2) “[T]here are emerging reports of increased rates of musculoskeletal and metabolic injury in these programs [including CrossFit].” [Doc. No. 1, at pp. 16-20.]

Plaintiff's Complaint includes causes of action for false advertising (15 U.S.C. § 1125(a) and Cal. Bus. & Prof. Code § 17500); unfair business competition (Cal. Bus. & Prof. Code § 17200); and declaratory relief. [Doc. No. 1, at pp. 1, 15-20.] In the causes of action for false advertising and unfair business competition, plaintiff repeats the general factual allegations that defendant published two false and misleading statements in the JSCR and contends these statements have caused and will continue to cause harm to plaintiff's business reputation. [Doc. No. 1, at pp. 15-19.]

Currently under submission before the District Court is plaintiffs' Motion for Partial Summary Judgment on the Element of Falsity. [Doc. No. 38.] In the Motion, plaintiff argues there is no material issue of fact as to the falsity of the injury data included in the Devor Study. In support of the Motion, plaintiff submitted declarations by ten study participants and contends that the information in these declarations directly refutes the “overuse or injury” data included in the Devor Study and shows the data to be false. [Doc. No. 41, at pp. 11-12.] Defendant has filed an Opposition to the Motion. In the Opposition, defendant argues that plaintiff's Motion for Partial Summary Judgment should be denied because the evidence submitted by plaintiff is not enough to establish that the overuse or injury data in the Devor Study is false. [Doc. No. 42, at pp. 2, 6-12.] Defendant also argues that plaintiff's Motion should be denied as premature, because the parties have not completed discovery [Doc. No. 42, at pp. 2, 14-15.]

Federal Rule of Civil Procedure 26(c), which sets forth various grounds for the issuance of a protective order, “was enacted as a safeguard for the protection of parties and witnesses in view of the broad discovery rights authorized in Rule 26(b).” U.S. v. Columbia Broadcasting System, Inc., 666 F.2d 364, 368-369 (9th Cir. 1982). “Among the goals furthered by protective orders is reducing conflict over discovery and facilitating the flow of information through discovery.” 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2044.1 (3d ed.). [P]rotective orders that cannot be relied upon will not foster cooperation through discovery.” Id.

Under Rule 26(c)(1), “[a] party or any person from whom discovery is sought may move for a protective order....The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms ... for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;... (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way...” Fed.R.Civ.P. (c)(1).

*3 Federal Courts have “broad latitude to grant protective orders to prevent disclosure of materials for many types of information...” Phillips v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002). “The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.” Seattle Times Co. v. Rhinehart, 467 U.S. 20,36 (1984). “Although courts may be more likely to grant protective orders for the [trade secret and commercial] information listed in Rule 26(c)[ (l)(G) ], courts have consistently granted protective orders that prevent disclosure of many types of information....” Phillips v. General Motors, 307 F.3d at 1212.

In Federal practice, there are at least three types of protective orders used to limit the discovery or dissemination of confidential or private information. “Particular protective orders” are issued by a Court after a showing of good cause to cover specific, identified discovery materials. Gillard v. Boulder Valley School Dist., 196 F.R.D. 382, 385-386 (D. Colo. 2000).

Blanket protective orders are routinely approved by the Court based on a stipulation of the parties when there is “a threshold showing of good cause to believe that discovery will involve the disclosure of confidential information....” Id. “Blanket protective orders place upon the parties themselves, or others from whom discovery is sought, the initial burden of determining what information is entitled to protection. Normally, a blanket protective order requires that counsel for a producing party review the information to be disclosed and designate the information it believes, in good faith, is confidential or otherwise entitled to protection. The designated information is thereafter entitled to the protections afforded by the blanket protective order unless the designation is objected to by an opposing party. Judicial review of a party's designation as confidential occurs only when there is such an objection which the parties cannot resolve by agreement.” Id. at 386.

“Blanket protective orders serve the interests of a just, speedy, and less expensive determination of complex disputes by alleviating the need for and delay occasioned by extensive and repeated judicial intervention. In view of increasingly complex cases and the existing workload of the trial courts, blanket protective orders are essential to the functioning of civil discovery. Absent such orders, discovery would come to a virtual standstill.” Id. (internal citations and quotations omitted).

A blanket or umbrella protective order is obtained “without making a particularized showing of good cause with respect to any individual document.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1138 (9lh Cir. 2003). Since a blanket protective order is made without a particularized showing of good cause, it is typically over inclusive in that it “often covers materials that would not qualify for protection if subjected to an individualized analysis” of “good cause.” Perry v. Brown, 667 F.3d 1078, 1086 (9th Cir. 2012). As a result, “blanket orders are inherently subject to challenge and modification....” San Jose Mercury News, Inc. v. U.S. Dist. Court—Northern Dist. (San Jose), 187 F.3d 1096, 1103 (9th Cir. 1999). In other words, “[r]eliance will be less with a blanket order, because it is by nature over inclusive.” Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).“If a party takes steps to release documents subject to a stipulated order, the party opposing disclosure has the burden of establishing that there is good cause to continue the protection of the discovery material.” In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011).

*4 Documents filed under seal are not accessible to the public. “Generally, the public can gain access to litigation documents and information produced during discovery unless the party opposing disclosure shows ‘good cause’ why a protective order is necessary.” Phillips v. General Motors, 307 F.3d at 1210. Federal common law recognizes “ ‘a strong presumption in favor of access' to judicial documents which ‘can be overcome’ only by showing ‘sufficiently important countervailing interests.’ In deciding whether sufficient countervailing interests exist, the court will look to the ‘public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets.” ’ Id. at 1212-1213 (internal citations omitted).

The public does not have a strong or compelling interest in access to “documents produced between private litigants” or in documents submitted to the Court with a nondispositive motion. Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010). A showing of “good cause” for a protective order under Rule 26(c) is enough to justify filing documents attached to a non-dispositive motion under seal. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). Once a discovery document attached to a nondispositive motion is filed under seal, “the usual presumption of the public's right of access is rebutted, so that the party seeking disclosure must present sufficiently compelling reasons why the sealed discovery document should be released.” Phillips v. General Motors Corp., 307 F.3d at 1213.

“[J]udicial records attached to dispositive motions” are “treated differently from records attached to non-dispositive motions. Those who seek to maintain the secrecy of documents attached to dispositive motions must meet the high threshold of showing that ‘compelling reasons' support secrecy.’ ” Kamakana v. Honolulu, 447 F.3d at 1180. The reason for this difference is that “the public has less of a need for access to court records attached only to non-dispositive motions....” Id. at 1179.

Once a party challenges whether documents produced during discovery are entitled to continuing protection under a stipulated protective order, the Court must require “an actual showing of good cause” under Rule 26(c) and “identify and discuss the factors it considered in its ‘good cause’ examination.” Foltz v. State Farm, 331 F.3d at 1130-1131. “A party asserting good cause bears the burden, for each particular document it seeks to protect, of showing that specific prejudice or harm will result if no protective order is granted.” Id. at 1130. “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman v. International, 966 F.2d at 476, quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). “[I]f the court concludes that such harm will result from disclosure of the discovery documents, then it must proceed to balance “the public and private interests to decide whether [maintaining] a protective order is necessary.” In re Roman Catholic Archbishop, 661 F.3d at 424.

The Ninth Circuit has also identified several factors to be considered in evaluating whether “good cause” exists to continue the protection of discovery material produced pursuant to a stipulated protective order: “(1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefiting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public.” Id. at 424 n.5.

*5 On August 20, 2014, this Court entered a stipulated Protective Order which provides in part as follows:

4 (a) Designation as “CONFIDENTIAL”: Any party may designate information as “CONFIDENTIAL” only if, in the good faith belief of such party and its counsel, the unrestricted disclosure of such information could be potentially prejudicial to the business or operations of such party.

12. Before any materials produced in discovery ... which are designated Confidential Information are filed with the Court for any purpose, the party seeking to file such material must seek permission of the Court to file the material under seal. ...

20. Nothing within this order will be construed to prevent disclosure of Confidential Information if such disclosure is required by law or by order of the Court.

[Doc. No. 14, at pp. 3, 6, 8.]

As noted above, plaintiff seeks an order from the Court that has two purposes: (1) striking defendant's designation of the challenged documents as “confidential” under the stipulated Protective Order; and (2) filing the challenged documents as public records (i.e., without the protection of a sealing order). In this regard, plaintiff argues that defendant improperly designated the challenged documents as “confidential” under the stipulated Protective Order and cannot make a showing of “good cause” for their continued protection as “confidential.” [Doc. No. 51, at pp. 3-15.] Defendant contends that the documents are entitled to continuing protection as “confidential” under the stipulated Protective Order and should be filed under seal because there is “good cause” to do so. [Doc. No. 51, at pp. 15-17.]

The ten documents challenged by plaintiff in the Joint Motion and designated by defendant as “confidential” can generally be described as an initial draft of the Devor Article as submitted to JSCR; e-mails from JSCR confirming receipt of an initial and a revised draft of the Devor Article; an internal e-mail communication between two of JSCR's editors; an e-mail from one of the authors seeking the status of the draft article; and communications containing comments on initial and revised drafts of the Devor Article by JSCR editors, peer reviewers, and authors. [Doc. No. 51, at pp. 5-8.] Plaintiff's counsel submitted copies of the challenged documents as exhibits to an un-redacted version of the Joint Motion. [Doc. No. 50-1, at pp. 22-115.]

*6 The Protective Order allows a party to challenge or object to the designation of particular documents as “confidential” and “to move the Court for a ruling on the objection....” [Doc. No. 14, at p. 6.] Plaintiff believes the challenged documents show that defendant NSCA was not “merely a passive publisher of‘independent,’ third party research” but actually “manipulated” the publication process “to ensure that the Devor Article contained negative statements about CrossFit intended to undermine the researchers' otherwise positive findings.” [Doc. No. 51, at p. 5.] In addition, plaintiff claims one of the challenged documents shows that defendant NSCA's “true motive” in publishing the Devor Article was “to disparage” plaintiff's trainer certification business. [Doc. No. 51, at p. 8.]

Plaintiff argues that the Court should strike defendant's designation of the challenged documents as “confidential,” because “[t]here is no basis to shield [them] from public disclosure” as defendant NSCA cannot show it would “suffer particularized harm” if the documents are disclosed to the public. According to plaintiff, mere embarrassment about the content of the challenged documents is not enough for defendant to establish “particularized harm.” [Doc. No. 51, at 10, 13-14.] Plaintiff also contends that the challenged documents do not qualify for protection from public disclosure because they do not contain private or sensitive commercial information or proprietary trade secrets. [Doc. No. 51, at pp. 10-11, 13.] Instead, plaintiff asserts that defendant's “real reason” for designating the challenged documents as “confidential” is that they “shed light on [defendant's alleged] shoddy editorial and peer review process, through which the JSCR's editors and peer reviewers [allegedly] pressured the Devor Article's authors to include data showing that participants were injured, even though none were, and commentary warning about the ‘risks' of CrossFit.” [Doc. No. 51, at p. 12.][2]

Plaintiff's final arguments are that the “public has an interest” in disclosure of the challenged documents at this time, and plaintiff “continue[s] to be damaged with each day that the Devor Article's [allegedly] false statements remain unrefuted in the public domain.” [Doc. No. 51, at pp. 14-15.] According to plaintiff, “[t]he only way to minimize that ongoing harm is to allow the public to see the documents that [allegedly] reveal the [defendant's] true role in promoting the Devor Article's [allegedly] false injury data.” [Doc. No. 51, at 14-15.]

Based on a review of the allegations in the Complaint, it is apparent that all of the challenged documents are relevant to issues of fact raised by the parties' pleadings. [Doc. No. 1, at pp. 2-22.] However, the Court notes that it is up to the trier of fact to determine what, if anything, the challenged documents prove, and the Complaint in this action includes a demand for a trial by jury on each of the claims for relief. [Doc. No. 1, at p. 23.]

As outlined above, the stipulated Protective Order filed in this case allows a party to designate documents or information produced during the discovery process as “confidential” based on “a good faith belief” that “unrestricted disclosure” could be potentially prejudicial to the business or operations of such party.” [Doc. No. 14, at p. 3.] Defendant argues that the Court should deny plaintiff's request to strike the “confidential” designations for the challenged documents at issue in the Joint Motion, because the designations were made “in good faith” as allowed by the terms of the stipulated Protective Order. [Doc. No. 51, at pp. 15-16.]

*7 In support of its contention that the challenged documents are confidential, defendant submitted a supporting Declaration. The Declaration states that the challenged documents include e-mails and other documents produced as part of JSCR's editorial process. This information has been protected by JSCR as confidential and was never intended by JSCR to be accessible to the public. These documents are part of an internal database that is only accessible to those assigned a user name and pass code. [Doc. No. 51-2, at pp. 2-3.] Based on all of the moving and opposing arguments submitted, as well as the declarations submitted in support of the parties' positions in the Joint Motion, the Court finds there is no reason to doubt defendant's “good faith” in designating the challenged documents as “confidential” under the stipulated Protective Order. [Doc. No. 14, at p. 3.]

As defendant points out, the stipulated Protective Order provides that all confidential information produced by the parties can only “be used for the legitimate purposes of this litigation.” [Doc. No. 51, at p. at 15; Doc. No. 14, at p. 6, ¶ 14,] Defendant argues that the Court should deny plaintiff's request for an order de-designating the challenged document as “confidential,” because plaintiff seeks to strike the “confidentiality” designations for an improper purpose – to “disparage and discredit” defendant in the media. [Doc. No. 51, at pp. 15-17.] A Declaration submitted by defendant supports this argument with references to specific examples of plaintiff's efforts to attack and discredit defendant in social media. [Doc, No. 51-2, at p. 3.] In this regard, defendant has identified a specific harm or prejudice that will undoubtedly occur if the Court grants plaintiff's request to de-designate the challenged documents as “confidential” and permits them to be filed in the public record.

Based on plaintiff's arguments alone, it is readily apparent that “unrestricted disclosure” of the challenged documents “could be potentially prejudicial” to defendant's business or operations and to the fairness and efficiency of this litigation. [Doc. No. 14, at p. 3.] While plaintiff argues extensively that defendant cannot establish “good cause” to maintain the confidentiality of the challenged documents, plaintiff has not even attempted to identify a legitimate purpose for its request to de-designate these documents and make them accessible to the public at this time. [Doc. No. 51, at pp. 2-15.] Rather, plaintiff readily admits that it wants to use these documents to publicly discredit defendant in the media before the information contained in the documents becomes material to the case. [Doc. No. 51, at p. 14.] In other words, and as defendant contends, plaintiff “desires to try this case in the public arena rather than in a court of law.” [Doc. No. 51, at p. 15.]

Until and unless the challenged documents are proffered as evidence on an issue relevant to defendant's liability or some other material issue in this litigation, plaintiff's request for public disclosure of these documents is, at best, premature. The only discernible interest the public has in this litigation is to have it resolved on the merits, and this interest would not be advanced by the premature release of selected documents for the sole purpose of allowing one party to the litigation to attempt to discredit another in the public arena. In response, the other party might feel compelled to respond in kind, thereby increasing the potential for this case to digress into an incivility which would defeat the purpose of our adversarial system, which is intended to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1.

Plaintiff's request to strike the confidential designations as to the challenged documents at this time also has the potential to disrupt the discovery process, which has already suffered a number of delays and discovery disputes, and to further postpone a resolution of this case on the merits. Although the Court has recently ruled on all pending discovery motions, the current deadline for completing discovery does not expire until July 17, 2015. In addition, the parties have requested an extension of this deadline, and the Court intends to grant the request. In other words, discovery is still very much in process. As a result, the stipulated Protective Order currently in place is still needed to facilitate the discovery process and to foster cooperation between the parties so that the case can proceed to a decision on the merits. In order to foster cooperation and to complete discovery in this case, both parties must be able to rely on the safeguards afforded by the stipulated Protective Order.

*8 For all of the reasons outlined above, the balance of interests at this time does not favor de-designation of the challenged documents as “confidential” under the terms of the stipulated Protective Order. The Court finds there is good cause at this time for continued protection of these documents as “confidential” and for an order filing the documents and a redacted copy of the parties' Joint Motion under seal.

Although the Court has ruled that the challenged documents are entitled to continued protection as “confidential” at this time and is ordering them filed under seal, defendant is forewarned that it must meet a more exacting and onerous standard if and when any of these documents is submitted with a dispositive motion or as evidence at trial. Kamakana v. Honolulu, 447 F.3d at 1180. “Those who seek to maintain the secrecy of documents attached to dispositive motions must meet the high threshold of showing that ‘compelling reasons' support secrecy.” Id.

Based on the foregoing, IT IS HEREBY ORDERED THAT plaintiff's request in the parties' Joint Motion for an order striking the “confidential” designations for ten documents produced by defendant during discovery in this case must be DENIED without prejudice. [Doc. No. 51.] Plaintiff may seek to reveal the challenged documents in the public record if and when they are submitted to the District Court in connection with a summary judgment motion or as evidence at trial.

IT IS FURTHER ORDERED THAT plaintiff's Application to File Materials Under Seal is GRANTED. The Clerk of the Court is directed to file the un-redacted version of the parties' Joint Motion [Doc. No. 50] and Exhibits 2 through 11 to the Serritella Declaration [Doc. No. 50-1, at pp. 22-115] under seal. The redacted versions of the parties' Joint Motion [Doc. No. 51] and the Serritella Declaration [Doc. No. 51-1] shall continue to be filed in the public record.

IT IS ORDERED.

Date: July 15, 2015.

The Devor Study is sometimes referred to herein as the “Devor Article” or the “published article.”

Plaintiff also argues that defendant cannot suffer “particularized harm” from public disclosure of the challenged documents, because some of the information in these documents was already made available to plaintiff from the Ohio State University in response to a request under the Ohio Public Records Act. [Doc. No. 51, at 10-11.] This Court's authority to issue protective orders does not extend to documents legally obtained through means other than the discovery process in this action. Kirsnner v. Uniden Corp. of America, 842 F.2d 1074, 1080-1081 (9 Cir. 1988). As a result, nothing in this Order should be construed to limit the use of documents obtained through the Ohio Public Records Act.