*1 On February 7, 2020, plaintiff filed a Motion for Sanctions (“Motion” or “Mot.”) against defendant State Farm, alleging that defendant had violated the Protective Order issued in this case by disclosing information designated as “Confidential” and “Highly Confidential -- Attorneys' Eyes Only,” or that should have been redacted pursuant to Local Rule 5.2-1. (ECF No. 54). Plaintiff also submitted her declaration, and the declaration of plaintiff's counsel Peter D. Scott (“Scott Decl.”), along with exhibits. (ECF No. 54). On February 19, 2020, defendant filed an Opposition (alternatively “Opp'n”) to the Motion, along with the declaration of defendant's counsel Valerie D. Rojas (“Rojas Decl.”), and exhibits. (ECF No. 110). On February 26, 2020, plaintiff filed her Reply. (ECF No. 118). Having considered the pleadings submitted in connection with the Motion, the Court has concluded that oral argument will not be of material assistance in determining the Motion. Accordingly, the hearing scheduled for March 11, 2020, is ordered off calendar. See Local Rule 7-15.

The Parties' Positions

Plaintiff's Position

By way of background, on February 5, 2020, defendant State Farm filed an Opposition (ECF No. 51) to plaintiff's motion for reconsideration of the Court's January 30, 2020, Order (ECF No. 49). With its Opposition, defendant submitted the supplemental report prepared by State Farm's expert, Brian P. Daly (“Report”) (ECF No. 51-3). (Mot. at 4). Plaintiff deems the inclusion of the Report to be “superfluous” as it was never discussed or referenced in defendant's Opposition or any accompanying declaration. (Id.). She suggests that the inclusion of the Report “was patently a publicity stunt designed as retribution for the negative attention visited upon State Farm during extensive media coverage” that week. (Id.).

Plaintiff asserts that defendant's filing of the Report violates the terms of the August 9, 2019, stipulated Protective Order issued in this action (ECF No. 16) and this Court's Local Rules for the following reasons: (1) the Report discloses information derived from plaintiff's medical records; (2) it lists plaintiff's home address more than 70 times; (3) it includes photographs (primarily of plaintiff's home) that are “designated as confidential”; and (4) it includes defendant's “false speculation that Plaintiff was a smoker after her 2015 cancer diagnosis and that she, and not State Farm is to blame for her illness,” thus disclosing plaintiff's medical information “in a way that is clearly intended to recklessly smear Plaintiff.” (Id. at 4-5). She notes that pursuant to the Protective Order, a party is prohibited from publicly filing any document designated as Confidential or as “Highly Confidential -- Attorneys' Eyes Only.” (Mot. at 6). The deposition of plaintiff's oncologist, Dr. Piro, was conducted on December 12, 2019, and plaintiff designated his testimony and the medical records produced at the deposition as “Highly Confidential -- Attorneys' Eyes Only” (“AEO”). (Id. at 7; Scott Decl. ¶ 5). Mr. Daly's Report was filed by defendant without redactions, and includes information based on Mr. Daly's review of the “AEO transcript of plaintiff's oncologist, Dr. Piro.” (Mot. at 7; Report ¶ 4.0). Plaintiff also asserts that defendant's failure to redact the Report violates Local Rule 5.2-1, which requires that “any document that contains a home address shall include only the city and state.” (Mot. at 7-8). She notes that the Report included her full address at pages 7 and 13, and also an additional “74 times adjacent to an equal number of photographs of plaintiff's residence [that] were designated ‘Confidential.’” (Id. at 8; Scott Decl. ¶¶ 6, 8). She points out that the Report also directly quotes from Dr. Piro's testimony and plaintiff's medical records, all of which were designated as AEO, and quotes from a letter from Dr. Piro to plaintiff that was designated as “Confidential.” (Mot. at 8; Scott Decl. ¶ 7). When plaintiff objected to the filing, defendant responded “that it disagreed that ... some of the disclosures were improper and [according to plaintiff] did not move swiftly to remove the Report f[rom] the public docket.” (Mot. at 8). Thus, plaintiff “had to take the initiative to remove the Report.” (Id. at 8; Scott Decl. ¶¶ 10-14). Furthermore, defendant also filed the Report in an unrelated case where State Farm is the defendant but to which plaintiff is not a party to, or a witness in. (Mot. at 9; Scott Decl. ¶ 15, Ex. C). Plaintiff only learned about this filing from counsel for “one of the parties in this litigation via an email on Thursday, February 6, 2020.” (Mot. at 9; Scott Decl. ¶ 15, Ex. C). That email states that Ms. Rojas had “accidently filed” the Report in the unrelated case and had also submitted a Notice of Withdrawal in that action. (Scott Decl. Ex. C).

*2 Plaintiff seeks sanctions in an amount “well beyond $10,000 in legal fees [incurred] dealing with State Farm's violation of the Protective Order.” (Mot. at 10; Scott Decl. ¶ 20). She notes that she is also entitled to damages “for the emotional distress and other harm she has suffered because of these improper disclosures,” but will pursue such damages at trial. (Mot. at 10).

Defendant's Position

State Farm responds that sanctions are not warranted because the information disclosed “was already in the public domain,” and that by the time the Motion is heard, “trial in this action will be complete such that the information would be made public.” (Opp'n at 1). Defendant notes that plaintiff has posted several photographs of the subject property's interior, exterior, and belongings on her Instagram account, and that photos of her home can also be found in a Los Angeles Times article published before she filed this lawsuit. (Id.). It states that plaintiff “intended to file several detailed, color photographs of her bedroom” and other areas of her home in one of her motions in limine but “removed these photographs after she filed her motion for sanctions.” (Id.). State Farm claims that plaintiff's cancer diagnosis was made public on February 4, 2020, before it filed its opposition to plaintiff's motion for reconsideration, and was first made public in 2015. (Id. at 1-2). According to defendant, plaintiff's claim that the Report contained highly confidential medical information “is inaccurate because the [Report] is devoid of any ... medical condition,” other than what plaintiff previously disclosed to the public. (Id. at 2). It also submits that although the parties have been treating plaintiff's address as confidential, “there is no question that Plaintiff's address is already in the public domain” and “appears on multiple websites for the public to see.” (Id.). Defendant concedes that pursuant to the Local Rules plaintiff's address should have been redacted, but asserts that “this was a mere oversight and ... does not warrant the imposition of sanctions” as “sanctions are only warranted if the party fails to comply with a specific court order.” (Id. (citation omitted)). Defendant further observes that on January 21, 2020, plaintiff's counsel advised that on February 5, 2020, plaintiff intended to de-designate “Confidential designations with respect to Plaintiff's stage 4 cancer and COPD diagnosis.” (Id. at 3; Marti Decl.¶ 5, Ex. 1). Defendant argues that on February 5, 2020, it filed its opposition containing the Report, and disagreed with plaintiff's counsel who advised that the Report contained confidential information and requested that the report be removed from the docket. (Id. at 4). It states that it filed a Notice of Withdrawal on that date and “refiled the supplemental report to only include the cover page.” (Id.). State Farm contends that it did not violate the protective order or Local Rule 5.2-1 because plaintiff intended to waive confidentiality by including the allegedly confidential information, including her home address, in public court filings, and because the information was already in the public domain. (Id. at 4-5). It further contends that plaintiff had no intention of keeping her address confidential as she included it in her “Proposed Stipulated Facts” that were exchanged at the Local Rule 16 meeting of counsel on January 10, 2020. (Id. at 5).

*3 Defendant submits that as there was no violation of the Protective Order, Rule 37 sanctions are not warranted, because the information in the Report was already in the public domain and the Protective Order “specifically provides [that] confidential information is information that has been maintained in a non-public manner.” (Id. at 6). It also asserts that Local Rule 5.2-1 sanctions are not warranted because “[w]hile State Farm's counsel recognizes that Plaintiff's address should have been redacted notwithstanding that it is already in the public domain, this violation does not warrant sanctions because it was an oversight on behalf of State Farm's counsel” and “only repeated failures after a court order warrants the imposition of sanctions”; it also states that the “mix-up” with filing the Report in an unrelated case “was a clerical oversight” and not evidence of a repeated failure to comply with a court order. (Id. at 8-9 (citation omitted)). Finally, defendant suggests that the Motion should be denied because plaintiff did not meet and confer prior to filing the Motion as required by Local Rule 37. (Id. at 7-8).

Plaintiff's Reply

Plaintiff responds that the Court specifically observed in its February 10, 2020, Order that the Protective Order in this action contains no provision allowing disclosure of confidential information simply because the information may be available in some form on the Internet, and warned defendant that “Going forward, the Court expects that defendant and its counsel shall remain in compliance with the terms of the Protective Order issued in this action.” (Reply at 1 (citing ECF No. 59 (emphasis added))). Plaintiff contends that despite this warning, on February 18, 2020, defendant filed three documents, all of which contained plaintiff's home address without redaction, and the documents had to be removed from the Court's docket. (Id. (citing ECF Nos. 92-1, 92-17, 92-17)). Then, when it filed its Opposition to the Motion one day later -- on February 19, 2020 -- defendant failed to acknowledge that just the day before it had again violated the Protective Order, the Local Rules, and this Court's February 10, 2020, Order by filing those three documents. (Id. at 1 & n.1). Plaintiff submits that not only did defendant fail to provide any reason why it should not be sanctioned, it “actually doubles-down on its untenable claim that it can violate the Protective Order with impunity so long as it can find the disclosed information on the Internet.” (Id. at 2). She also states that plaintiff's public disclosure of her medical condition does not mean that the testimony of her oncologist or her medical records were no longer AEO or “Confidential” under the terms of the Protective Order. (Id. at 2-3). She submits that sections 6.8, 6.10, and 6.11 of the Report all disclose information about her condition “far in excess of the mere fact of her cancer's relapse.” (Id. at 3). Plaintiff also observes that defendant's Internet evidence relating to her address or photographs of her home consists of “two cached internet pages from 2009 which disclose [her] address,” and that since that time she has taken several steps to protect the privacy of her address. (Id. at 3 & n.2; Mot. at 13). She never de-designated her address or photographs of her home in this action, and defendant never challenged her “Confidential” or AEO designations in accordance with the procedures required by the Protective Order. (Reply at 3-4). She also argues that the fact that some of this information may become public at trial does not “authorize State Farm to preemptively disclose such information.” (Id. at 4 (emphasis in original)). Finally, plaintiff argues that this Motion does not concern a discovery dispute, but State Farm's violation of the Protective Order and, therefore, the issue does not fall into the joint stipulation procedures required by Local Rule 37. (Id.). She also points out, however, that on February 6, 2020, counsel met and conferred pursuant to Local Rule 7-2 concerning this Motion. (Id. at 4; Mot. Scott Decl. ¶ 18, Ex. F).

Discussion

The following discussion in the Court's February 10, 2020, Order is equally applicable to this Motion:

*4 The Court notes that the Protective Order in this action contains no provision allowing disclosure of confidential personal medical information or sensitive private information that is protected from disclosure under state or federal statutes, court rules (such as Local Rule 5.2-1), case decisions, or common law, or which was designated as Confidential or Highly Confidential under the terms of the Protective Order, simply because that information may be available in some form on the Internet. It does not appear that defendant previously challenged plaintiff's Highly Confidential or Confidential designations in this action, but it nevertheless submitted a completely unredacted exhibit containing such information in this action, and inexplicably (at least at this point), submitted that same unredacted document in a completely unrelated action.

(ECF No. 59). Notwithstanding defendant's argument that plaintiff's address, photographs of her home, and her medical condition are public knowledge and/or available on the Internet, this information was protected not only by plaintiff's designations pursuant to the Protective Order (which were not challenged by defendant), but also by Local Rule 5.2-1. See Fed. R. Civ. P. 5.2. Moreover, not only did defendant file the unredacted Report in this action, because of a clerical “mix-up” it also filed the unredacted Report in another, unrelated action. Then, when notified of both of these issues, it appears that defendant did not “immediately ... use its best efforts to retrieve all unauthorized copies of the Protected Material,” either in this action or the unrelated action, as required by the Protective Order, and plaintiff's counsel instead took the laboring oar in protecting plaintiff's information. (ECF No. 16-1 § 10).

Defendant's attempt to obfuscate the issue by conflating plaintiff's diagnoses with more detailed health-related information is not well taken. Although plaintiff's diagnoses may be a matter of public knowledge, specific reports or notes from her doctor, and her doctor's deposition testimony, most certainly are not. Neither is the Court persuaded by defendant's arguments regarding plaintiff's draft motion in limine that may have contained photographs that were later removed by plaintiff “without notice.” That plaintiff initially included (but then changed her mind about including) those photographs in her motion in limine does not give defendant carte blanche to publish all kinds of protected Confidential and Highly Confidential information. Additionally, notwithstanding the fact that information later disclosed at trial may lose its protected nature, this does not mean that a party may simply publish such information in advance of that occurrence -- which, in any event, may not ever come to pass (e.g., the case may settle prior to or during trial, or the confidential or AEO information may not ever be put into evidence at trial). Making defendant's violation of the Protective Order even more concerning, the pleading with which the Report was submitted never refers to any specific information in the Report, and the declaration accompanying that opposition did not reference the Report. (See, e.g., ECF No. 49). While defendant asserts that sanctions are not warranted because it has not repeatedly violated a court order, under the circumstances herein the Court disagrees -- the Protective Order in this action is as much a court order as any other order, and this issue was specifically addressed in the Court's February 10, 2020, Order. Nevertheless, the day prior to filing its Opposition to this Motion, defendant's failure to comply with the Local Rules and the Court's orders continued with its filing of three more documents containing plaintiff's home address, which then had to be removed from the Court's docket. (See ECF Nos. 92, 97). In short, defendant's casual attitude toward the disclosure of plaintiff's private health and personal information -- whether the results of a clerical mix-up, or mistakenly filing the Report “in the docket of the unrelated case rather than in the instant action” -- and its repeated failure to act in accordance with the Local Rules and the terms of the Protective Order, warrant the imposition of sanctions.

*5 As acknowledged by defendant, Rule 37 of the Federal Rules of Civil Procedure authorizes the Court to impose sanctions when a party has violated a discovery order, including a protective order issued pursuant to Rule 26. (Opp'n at 6-7 (citing Fed. R. Civ. P. 37(b)(2); United States v. Nat'l Med. Enters., Inc., 792 F.2d 906, 910 (9th Cir. 1986))). Additionally, the Protective Order issued in this action provides that “[a]ny violation of this Order may be punished by appropriate measures including, without limitation, ... monetary sanctions. (ECF No. 16-1 ¶ 14).

Defendant's protestations to the contrary, State Farm did violate the Protective Order with respect to the disclosure of plaintiff's medical information when it filed the Report not just in this action, but also in an unrelated action, and when it failed to redact plaintiff's address from the Report, in violation of Local Rule 5.2-1. Defendant has provided no valid reason as to why sanctions should not be imposed. However, plaintiff's counsel provided no information on which the Court can assess the actual expenses incurred by plaintiff, and the Court will not engage in satellite litigation on this issue. Accordingly, plaintiff's Motion is granted in part. The Court determines that defendant shall pay to plaintiff the sum of $2,500, which the Court finds to be the reasonable expenses, including attorney fees, necessary to bring this straight-forward Motion asserting a violation of the Protective Order in this action.

IT IS SO ORDERED.