*1 Plaintiffs' operative Second Amended Complaint against Sunrise Senior Living, LLC and Sunrise Senior Living Management, Inc. (collectively, “Defendants”) alleges among other things that Defendants defrauded residents at Defendants' assisted living facilities in California by falsely representing that services provided to residents would be determined according to their assessed needs. Dkt. 77. Defendants deny those allegations. Dkt. 83.

On January 2, 2020, Plaintiffs filed a Motion to Compel (Dkt. 107, “Motion”) further responses by Defendants to certain Request for Production of Documents (“RFP”). The Motion was heard on January 23, 2020. On January 30, 2020, the parties submitted a Joint Status Report regarding issues raised at the hearing. Dkt. 115. On January 31, 2020, the Court issued a written order granting and denying the Motion in part, as follows:

Dkt. 116 (“Order”) at 11. In the Order, the Court also set, at the parties' request, a telephonic conference with the Court on Tuesday, February 4, 2020 to discuss potential proposed modifications to the Protective Order (Dkt. 105). Order at 11. The parties thereafter requested that the telephonic conference be taken off calendar. Dkt. 117.

On February 27, 2020, at 2:16 p.m., Defendants filed an Ex Parte Application and supporting Memorandum (Dkt. 120-1, “Application” or “App.”), along with a supporting declaration and exhibits, seeking: (1) ten additional days to produce the resident assessments and census data directed by the Order; and (2) a modification of the Protective Order requiring Plaintiffs to provide Defendants redacted copies of documents included with future sealing applications at least five days prior to any filing such redacted versions for review, and if the parties do not agree on the redactions, requiring parties to raise any dispute with the Court in camera. App. at 1-2, 6-12; Dkt. 120-6. The basis for both the ex parte nature of the Application and the relief sought is an article that appeared on February 14, 2020 in the New York Times that refers to, among other things, this action, discovery in this action, and the Order, and includes quotations by one of Plaintiffs' attorneys, Kathryn Stebner. Dkt. 120-3 (“Article”). Defendants argue that the Article contains inaccuracies, at least one of which Defendants contend is “attributed directly to Ms. Stebner,” and shows that counsel for Plaintiffs have “a willingness to discuss the contents of [Defendants'] confidential documents with the press and use them to drum up attention.” App. at 7, 10. Defendants assert that due to the Article, they now must be more diligent in redacting private resident information from the remaining resident assessments and census data currently due to be produced on March 2, 2020, justifying a ten-date extension of the production deadline, and require the new provisions regarding under seal procedures. App. at 10-12.

*2 On February 28, 2020, at 11:50 a.m., Plaintiffs filed an Opposition to the Application, with a declaration and exhibits. Dkt. 121 (“Opposition” or “Opp.”). Defendants argue that ex parte relief is not warranted as there is no “crisis” or risk of immediate prejudice requiring immediate relief, “[n]o confidential information has been disclosed in the article or otherwise,” and no modification of the Protective Order is warranted. Opp. at 2, 4-7. As to the ex parte challenge, Defendants argue that there is no imminent under seal filing requiring revisiting the Protective Order now. As to the Article, Plaintiffs deny the statements attributed to Ms. Stebner disclose any confidential information, but instead track the public record allegations asserted by Plaintiffs. Id. at 4. Plaintiffs also argue that two of three allegedly “false” statements in the article were not attributed to Ms. Stebner but instead relate to the contents of the Order, a publicly available document. Id.

Ex parte applications “are rarely justified.” Mission Power Eng'g Co. v. Continental Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). To justify ex parte relief, putting the moving party “to go to the head of the line in front of all other litigants and receive special treatment,” the moving party must, at a minimum, show: (1) its “cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures”; and (2) “the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. at 492; see also Local Civil Rule 37–3 (for a discovery motion to be heard on an ex parte basis, the moving party must show “irreparable injury or prejudice not attributable to the lack of diligence of the moving party”). These requirements are necessary because ex parte applications “are inherently unfair” as the parties' opportunities to prepare “are grossly unbalanced.” Mission Power, 883 F. Supp. at 490. Such applications “must be supported by deposition transcripts or by affidavits or declarations whose contents would be admissible if the deponents, affiant, or declarants were testifying in court. A statement ‘on information and belief’ by the lawyer preparing the papers is insufficient.” Id. at 492.

As to Defendants' request for 10 additional days to comply with the production of resident assessments and census data as required by the Order, the Court grants Defendants an additional 7 days, to March 9, 2020. Defendants state they need additional time to “conduct additional levels of review” for the documents. App. at 2. However, Defendants do not submit evidence explaining why the Article slows the “great care” (id.) that they were already applying to the redaction process, or why 10 days, as opposed to some lesser amount, is necessary. The Court has previously described the competing concerns at issue with the production here: the sensitive nature of the information implicating the rights of third parties against the timing of upcoming cutoff dates in the case. The Court finds good cause for a seven-day extension only.

As to Defendants' request to modify the existing Protective Order, the Court finds the request not supported by a showing of imminent prejudice justifying ex parte relief and further finds, substantively, the request is not supported by good cause. See Fed. R. Civ. P. 26(c)(1). As a result, the request to modify the Protective Order is denied.

Lastly, perhaps due to the inherently expedited need to respond to the Application, despite serious allegations leveled against Ms. Stebner, Plaintiffs' did not submit a declaration from Ms. Stebner disputing or rebutting the allegations in the Application. The Court discussed with other counsel for Plaintiffs at prior hearings in this matter of the seriousness with which the Court takes protective orders, and the very serious consequences that would flow were the Court to find counsel, or any person, knowingly violated a protective order. Here, a newspaper article, using Plaintiffs' counsel as a source for at least some of the article, referenced a production of “a trove of documents showing how [Defendants] determine[ ] staffing levels,” exactly 14 days after the Court's order directing Defendants to produce “Task Times Studies” within 14 days, with the Court relying on the Protective Order in part to overrule Defendants' objections.

*3 It is ordered that within five days from the date of this Order, Plaintiff's counsel Kathryn Stebner shall file a declaration stating: (1) whether she has received and read the Protective Order in this case; (2) whether she has disclosed any information covered by the Protective Order to any person not authorized to receive such information under the Protective Order; and (3) whether she is aware of any representative of Plaintiffs who has disclosed any information covered by the Protective Order to any person not authorized to receive such information under the Protective Order. If Ms. Stebner contends that an answer to any of those questions would implicate a privilege, she shall so state, identifying the privilege.

For the foregoing reasons, the Application (Dkt. 120) is GRANTED in part and DENIED in part. Defendants' time to produce the resident assessments and census data as set forth in the Order is extended to March 9, 2020. In all other respects, the Application is DENIED. Plaintiff's counsel Kathryn Stebner is ordered to file a declaration as set forth above within five days from the date of this Order.

IT IS SO ORDERED.