Dr. Andrew Kerr v. Endologix, Inc.

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 DR. ANDREW KERR, CASE NO. 8:19-cv-01457-DOC-JDE

12 Plaintiff,

STIPULATED PROTECTIVE

13 vs. ORDER

14 ENDOLOGIX, INC.,

TRIVASCULAR

15 TECHNOLOGIES, INC., and

TRIVASCULAR, INC.,

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Defendant.

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Pursuant to the Stipulation (Dkt. 36) between Dr. Andrew Kerr (“Plaintiff”)

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and Defendants Endologix, Inc., TriVascular, Inc., and TriVascular Technologies,

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Inc. (collectively “Endologix” or “Defendants”), and good cause appearing

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therefore, the Court makes the following findings and enters the following Order:

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1. PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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proprietary or private information for which special protection from public

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disclosure and from use for any purpose other than pursuing this litigation may be

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warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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1 Order does not confer blanket protections on all disclosures or responses to

2 discovery and that the protection it affords from public disclosure and use extends

3 only to the limited information or items that are entitled to confidential treatment

4 under the applicable legal principles.

5 2. GOOD CAUSE STATEMENT

6 This action is likely to involve trade secrets, customer and pricing lists and

7 other valuable research, development, commercial, financial, technical and/or

8 proprietary information for which special protection from public disclosure and

9 from use for any purpose other than prosecution of this action is warranted. Such

10 confidential and proprietary materials and information consist of, among other

11 things:

12 a) Information that is the subject of a non-disclosure or confidentiality

13 agreement or obligation with third parties;

14 b) The names, or other information tending to reveal the identity of a

15 party’s supplier/vendor, designer, distributor, or customer;

16 c) Agreements with third-parties;

17 d) Research and development information;

18 e) Proprietary engineering or technical information, including product

19 design, manufacturing techniques, processing information, drawings, memoranda

20 and reports;

21 f) Information related to budgets, sales, profits, costs, margins, product

22 pricing, or other internal financial/accounting information, including non-public

23 information related to financial condition or performance and income or other non-

24 public tax information;

25 g) Information related to internal operations including personnel

26 information;

27 h) Information related to past, current and future product development;

28 i) Information related to past, current and future market analyses and

1 business and marketing development, including plans, strategies, forecasts and

2 competition; and,

3 j) Trade secrets (as defined by the jurisdiction in which the information

4 is located).

5 Accordingly, to expedite the flow of information, to facilitate the prompt

6 resolution of disputes over confidentiality of discovery materials, to adequately

7 protect information the parties are entitled to keep confidential, to ensure that the

8 parties are permitted reasonable necessary uses of such material in preparation for

9 and in the conduct of trial, to address their handling at the end of the litigation, and

10 serve the ends of justice, a protective order for such information is justified in this

11 matter. It is the intent of the parties that information will not be designated as

12 confidential for tactical reasons and that nothing be so designated without a good

13 faith belief that it has been maintained in a confidential, non-public manner, and

14 there is good cause why it should not be part of the public record of this case.

15 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE

16 The parties further acknowledge, as set forth in Section 14.3, below, that this

17 Stipulated Protective Order does not entitle them to file confidential information

18 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

19 and the standards that will be applied when a party seeks permission from the court

20 to file material under seal. There is a strong presumption that the public has a right

21 of access to judicial proceedings and records in civil cases. In connection with non-

22 dispositive motions, good cause must be shown to support a filing under seal. See

23 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),

24 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-

25 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even

26 stipulated protective orders require good cause showing), and a specific showing of

27 good cause or compelling reasons with proper evidentiary support and legal

28 justification, must be made with respect to Protected Material that a party seeks to

1 file under seal. The parties’ mere designation of Disclosure or Discovery Material

2 as CONFIDENTIAL does not— without the submission of competent evidence by

3 declaration, establishing that the material sought to be filed under seal qualifies as

4 confidential, privileged, or otherwise protectable—constitute good cause.

5 Further, if a party requests sealing related to a dispositive motion or trial,

6 then compelling reasons, not only good cause, for the sealing must be shown, and

7 the relief sought shall be narrowly tailored to serve the specific interest to be

8 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.

9 2010). For each item or type of information, document, or thing sought to be filed

10 or introduced under seal, the party seeking protection must articulate compelling

11 reasons, supported by specific facts and legal justification, for the requested sealing

12 order. Again, competent evidence supporting the application to file documents

13 under seal must be provided by declaration.

14 Any document that is not confidential, privileged, or otherwise protectable in

15 its entirety will not be filed under seal if the confidential portions can be

16 redacted. If documents can be redacted, then a redacted version for public

17 viewing, omitting only the confidential, privileged, or otherwise protectable

18 portions of the document, shall be filed. Any application that seeks to file

19 documents under seal in their entirety should include an explanation of why

20 redaction is not feasible.

21 4. DEFINITIONS

22 4.1 Action: Dr. Andrew Kerr v. Endologix, Inc. et al., Case No. 8:19-cv-

23 01457-DOC-JDE (C.D. Cal.).

24 4.2 Challenging Party: a Party or Non-Party that challenges the

25 designation of information or items under this Order.

26 4.3 “CONFIDENTIAL” Information or Items: information

27 (regardless of how it is generated, stored or maintained) or tangible things that

28 qualify for protection under Federal Rule of Civil Procedure 26(c), and as

1 specified above in the Good Cause Statement.

2 4.4 Counsel: Outside Counsel of Record and House Counsel (as well

3 as their support staff).

4 4.5 Designating Party: a Party or Non-Party that designates

5 information or items that it produces in disclosures or in responses to discovery

6 as “CONFIDENTIAL.”

7 4.6 Disclosure or Discovery Material: all items or information,

8 regardless of the medium or manner in which it is generated, stored, or

9 maintained (including, among other things, testimony, transcripts, and tangible

10 things), that are produced or generated in disclosures or responses to discovery.

11 4.7 Expert: a person with specialized knowledge or experience in a

12 matter pertinent to the litigation who has been retained by a Party or its

13 counsel to serve as an expert witness or as a consultant in this Action.

14 4.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

15 Information or Items: extremely sensitive “Confidential Information or Items,”

16 disclosure of which to another Party or Non-Party would create a substantial

17 risk of serious harm that could not be avoided by less restrictive means.

18 4.9 House Counsel: attorneys who are employees of a party to this

19 Action. House Counsel does not include Outside Counsel of Record or any

20 other outside counsel.

21 4.10 Non-Party: any natural person, partnership, corporation,

22 association or other legal entity not named as a Party to this action.

23 4.11 Outside Counsel of Record: attorneys who are not employees of a

24 party to this Action but are retained to represent a party to this Action and

25 have appeared in this Action on behalf of that party or are affiliated with a law

26 firm that has appeared on behalf of that party, and includes support staff.

27 4.12 Party: any party to this Action, including all of its officers,

28 directors, employees, consultants, retained experts, and Outside Counsel of

1 Record (and their support staffs).

2 4.13 Producing Party: a Party or Non-Party that produces Disclosure or

3 Discovery Material in this Action.

4 4.14 Professional Vendors: persons or entities that provide litigation

5 support services (e.g., photocopying, videotaping, translating, preparing

6 exhibits or demonstrations, and organizing, storing, or retrieving data in any

7 form or medium) and their employees and subcontractors.

8 4.15 Protected Material: any Disclosure or Discovery Material that is

9 designated as “CONFIDENTIAL.”

10 4.16 Receiving Party: a Party that receives Disclosure or Discovery

11 Material from a Producing Party.

12 5. SCOPE

13 The protections conferred by this Stipulation and Order cover not only

14 Protected Material (as defined above), but also (1) any information copied or

15 extracted from Protected Material; (2) all copies, excerpts, summaries, or

16 compilations of Protected Material; and (3) any testimony, conversations, or

17 presentations by Parties or their Counsel that might reveal Protected Material.

18 Any use of Protected Material at trial shall be governed by the orders of the

19 trial judge and other applicable authorities. This Order does not govern the use of

20 Protected Material at trial.

21 6. DURATION

22 Once a case proceeds to trial, information that was designated as

23 CONFIDENTIAL or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

24 ONLY” or maintained pursuant to this protective order used or introduced as an

25 exhibit at trial becomes public and will be presumptively available to all members

26 of the public, including the press, unless compelling reasons supported by specific

27 factual findings to proceed otherwise are made to the trial judge in advance of the

28 trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing

1 for sealing documents produced in discovery from “compelling reasons” standard

2 when merits-related documents are part of court record). Accordingly, the terms of

3 this protective order do not extend beyond the commencement of the trial.

4 7. DESIGNATING PROTECTED MATERIAL

5 7.1 Exercise of Restraint and Care in Designating Material for

6 Protection. Each Party or Non-Party that designates information or items for

7 protection under this Order must take care to limit any such designation to

8 specific material that qualifies under the appropriate standards. The

9 Designating Party must designate for protection only those parts of material,

10 documents, items or oral or written communications that qualify so that other

11 portions of the material, documents, items or communications for which

12 protection is not warranted are not swept unjustifiably within the ambit of this

13 Order.

14 Mass, indiscriminate or routinized designations are prohibited. Designations

15 that are shown to be clearly unjustified or that have been made for an improper

16 purpose (e.g., to unnecessarily encumber the case development process or to

17 impose unnecessary expenses and burdens on other parties) may expose the

18 Designating Party to sanctions.

19 If it comes to a Designating Party’s attention that information or items that it

20 designated for protection do not qualify for protection, that Designating Party must

21 promptly notify all other Parties that it is withdrawing the inapplicable designation.

22 7.2 Manner and Timing of Designations. Except as otherwise

23 provided in this Order, or as otherwise stipulated or ordered, Disclosure of

24 Discovery Material that qualifies for protection under this Order must be

25 clearly so designated before the material is disclosed or produced.

26 Designation in conformity with this Order requires:

27 (a) for information in documentary form (e.g., paper or

28 electronic documents, but excluding transcripts of depositions or other pretrial or

1 trial proceedings), that the Producing Party affix at a minimum, the legend

2 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or “HIGHLY

3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (hereinafter “HIGHLY

4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY legend”), to each page that

5 contains protected material. If only a portion of the material on a page qualifies for

6 protection, the Producing Party also must clearly identify the protected portion(s)

7 (e.g., by making appropriate markings in the margins).

8 A Party or Non-Party that makes original documents available for inspection

9 need not designate them for protection until after the inspecting Party has indicated

10 which documents it would like copied and produced. During the inspection and

11 before the designation, all of the material made available for inspection shall be

12 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

13 inspecting Party has identified the documents it wants copied and produced, the

14 Producing Party must determine which documents, or portions thereof, qualify for

15 protection under this Order. Then, before producing the specified documents, the

16 Producing Party must affix the “HIGHLY CONFIDENTIAL – ATTORNEYS’

17 EYES ONLY” legend” to each page that contains Protected Material. If only a

18 portion of the material on a page qualifies for protection, the Producing Party also

19 must clearly identify the protected portion(s) (e.g., by making appropriate

20 markings in the margins).

21 (b) for testimony given in depositions that the Designating Party

22 identifies the Disclosure or Discovery Material on the record, before the close of

23 the deposition all protected testimony.

24 (c) for information produced in some form other than documentary

25 and for any other tangible items, that the Producing Party affix in a prominent

26 place on the exterior of the container or containers in which the information is

27 stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

28 ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information

1 warrants protection, the Producing Party, to the extent practicable, shall identify

2 the protected portion(s).

3 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

4 failure to designate qualified information or items does not, standing alone, waive

5 the Designating Party’s right to secure protection under this Order for such

6 material. Upon timely correction of a designation, the Receiving Party must make

7 reasonable efforts to assure that the material is treated in accordance with the

8 provisions of this Order.

9 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

10 8.1. Timing of Challenges. Any Party or Non-Party may challenge a

11 designation of confidentiality at any time that is consistent with the Court’s

12 Scheduling Order.

13 8.2 Meet and Confer. The Challenging Party shall initiate the dispute

14 resolution process under Local Rule 37-1 et seq.

15 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a

16 joint stipulation pursuant to Local Rule 37-2.

17 8.4 The burden of persuasion in any such challenge proceeding shall be

18 on the Designating Party. Frivolous challenges, and those made for an

19 improper purpose (e.g., to harass or impose unnecessary expenses and burdens

20 on other parties) may expose the Challenging Party to sanctions. Unless the

21 Designating Party has waived or withdrawn the confidentiality designation, all

22 parties shall continue to afford the material in question the level of protection

23 to which it is entitled under the Producing Party’s designation until the Court

24 rules on the challenge.

25 9. ACCESS TO AND USE OF PROTECTED MATERIAL

26 9.1 Basic Principles. A Receiving Party may use Protected Material that

27 is disclosed or produced by another Party or by a Non-Party in connection

28 with this Action only for prosecuting, defending or attempting to settle this

1 Action. Such Protected Material may be disclosed only to the categories of

2 persons and under the conditions described in this Order. When the Action has

3 been terminated, a Receiving Party must comply with the provisions of section

4 15 below (FINAL DISPOSITION).

5 Protected Material must be stored and maintained by a Receiving Party at a

6 location and in a secure manner that ensures that access is limited to the persons

7 authorized under this Order.

8 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

9 otherwise ordered by the court or permitted in writing by the Designating

10 Party, a Receiving Party may disclose any information or item designated

11 “CONFIDENTIAL” only to:

12 (a) the Receiving Party’s Outside Counsel of Record in this

13 Action, as well as employees of said Outside Counsel of Record to whom it is

14 reasonably necessary to disclose the information for this Action;

15 (b) the officers, directors, and employees (including House

16 Counsel) of the Receiving Party to whom disclosure is reasonably necessary

17 for this Action, where Dr. Kerr is the Receiving Party, Dr. Kerr and his

18 personal counsel, Charles Kerr, provided that Charles Kerr shall have signed

19 the“Acknowledgment and Agreement to Be Bound” (Exhibit A) ;

20 (c) Experts (as defined in this Order) of the Receiving Party to

21 whom disclosure is reasonably necessary for this Action and who have signed

22 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

23 (d) the court and its personnel;

24 (e) court reporters and their staff;

25 (f) professional jury or trial consultants, mock jurors, and

26 Professional Vendors to whom disclosure is reasonably necessary for this

27 Action and who have signed the “Acknowledgment and Agreement to Be

28 Bound” (Exhibit A) or, in the case of mock jurors, Exhibit B. Mock jurors

1 shall not be permitted to retain copies of any documents or items containing

2 CONFIDENTIAL Information;

3 (g) the author or recipient of a document containing the

4 information or a custodian or other person who otherwise possessed or knew

5 the information;

6 (h) during their depositions, witnesses, and attorneys for witnesses,

7 in the Action to whom disclosure is reasonably necessary provided: (1) the

8 deposing party requests that the witness sign the form attached as Exhibit A

9 hereto; and (2) they will not be permitted to keep any confidential information

10 unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit

11 A), unless otherwise agreed by the Designating Party or ordered by the court.

12 Pages of transcribed deposition testimony or exhibits to depositions that reveal

13 Protected Material may be separately bound by the court reporter and may not

14 be disclosed to anyone except as permitted under this Stipulated Protective

15 Order; and

16 (i) any mediators or settlement officers and their supporting

17 personnel, mutually agreed upon by any of the parties engaged in settlement

18 discussions.

19 9.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’

20 EYES ONLY” Information or Items. Unless otherwise ordered by the court or

21 permitted in writing by the Designating Party, a Receiving Party may disclose

22 any information or item designated “HIGHLY CONFIDENTIAL –

23 ATTORNEYS’ EYES ONLY” only to:

24 (a) the Receiving Party’s Outside Counsel of Record in this action,

25 as well as employees of said Outside Counsel of Record to whom it is

26 reasonably necessary to disclose the information for this litigation;

27 (b) Experts of the Receiving Party (1) to whom disclosure is

28 reasonably necessary for this litigation, (2) who have signed the

1 “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to

2 whom the procedures set forth in paragraph 7.4(a)(2), below, have been

3 followed;

4 (c) the court and its personnel;

5 (d) court reporters and their staff, professional jury or trial

6 consultants, mock jurors, and Professional Vendors to whom disclosure is

7 reasonably necessary for this litigation and who have signed the

8 “Acknowledgment and Agreement to Be Bound” (Exhibit A) or, in the case of

9 mock jurors, Exhibit B. Mock jurors shall not be permitted to retain copies of

10 any documents or items containing HIGHLY CONFIDENTIAL –

11 ATTORNEYS’ EYES ONLY Information; and

12 (e) the author or recipient of a document containing the

13 information or a custodian or other person who otherwise possessed or knew

14 the information.

15 9.4 Procedures for Approving or Objecting to Disclosure of

16 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information

17 or Items to Experts.

18 (a) Unless otherwise ordered by the court or agreed to in writing

19 by the Designating Party, a Party that seeks to disclose to an Expert (as defined

20 in this Order) any information or item that has been designated “HIGHLY

21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph

22 9.3(b) first must make a written request to the Designating Party that (1)

23 identifies the general categories of “HIGHLY CONFIDENTIAL –

24 ATTORNEYS’ EYES ONLY” information that the Receiving Party seeks

25 permission to disclose to the Expert, (2) sets forth the full name of the Expert

26 and the city and state of his or her primary residence, (3) attaches a copy of the

27 Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)

28 identifies each person or entity from whom the Expert has received

1 compensation or funding for work in his or her areas of expertise or to whom

2 the expert has provided professional services, including in connection with a

3 litigation, at any time during the preceding five years,1 and (6) identifies (by

4 name and number of the case, filing date, and location of court) any litigation

5 in connection with which the Expert has offered expert testimony, including

6 through a declaration, report, or testimony at a deposition or trial, during the

7 preceding five years.

8 (b) On the eighth day after making such a request and providing

9 the information specified in the preceding respective paragraphs, a Party may

10 disclose the subject Protected Material to the identified Designated House

11 Counsel or Expert unless, within 7 days of delivering the request, the Party

12 receives a written objection from the Designating Party. Any such objection

13 must set forth in detail the grounds on which it is based.

14 (c) A Party that receives a timely written objection must meet and

15 confer with the Designating Party (through direct voice to voice dialogue) to

16 try to resolve the matter by agreement within seven days of the written

17 objection. If no agreement is reached, the Party seeking to make the disclosure

18 to the Expert may file a motion as provided in Civ. L.R. 7 seeking permission

19 from the court to do so. Any such motion must describe the circumstances

20 with specificity, set forth in detail the reasons why the disclosure to the Expert

21 is reasonably necessary, assess the risk of harm that the disclosure would

22 entail, and suggest any additional means that could be used to reduce that risk.

23 In addition, any such motion must be accompanied by a competent

24 declaration describing the parties’ efforts to resolve the matter by agreement

25 (i.e., the extent and the content of the meet and confer discussions) and setting

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27 1 If the Expert believes any of this information is subject to a confidentiality obligation to a third-

party, then the Expert should provide whatever information the Expert believes can be disclosed

28 without violating any confidentiality agreements, and the Party seeking to disclose to the Expert

1 forth the reasons advanced by the Designating Party for its refusal to approve

2 the disclosure.

3 In any such proceeding, the Party opposing disclosure to the

4 Expert shall bear the burden of proving that the risk of harm that the disclosure

5 would entail (under the safeguards proposed) outweighs the Receiving Party’s

6 need to disclose the Protected Material to its Expert.

7 9.5 Prosecution Bar

8 Absent written consent from the Producing Party, any individual who

9 receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

10 ONLY information shall not be involved in the prosecution of patents or

11 patent applications relating to stent/graft technology, including without

12 limitation the patents asserted in this action and any patent or application

13 claiming priority to or otherwise related to the patents asserted in this action,

14 before any foreign or domestic agency, including the United States Patent and

15 Trademark Office (“the Patent Office”). . For purposes of this paragraph,

16 “prosecution” includes directly or indirectly drafting, amending, providing

17 advice regarding, or otherwise affecting the scope or maintenance of patent

18 claims. To avoid any doubt, “prosecution” as used in this paragraph does not

19 include representing a party challenging or defending a patent before a

20 domestic or foreign agency or from participating in reexamination, inter partes

21 review, or other review proceedings. This Prosecution Bar shall begin when

22 technical information designated HIGHLY CONFIDENTIAL –

23 ATTORNEYS’ EYES ONLY is first received by the affected person and shall

24 end two (2) years after final termination of this Action.

25 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

26 PRODUCED IN OTHER LITIGATION

27 If a Party is served with a subpoena or a court order issued in other

28 litigation that compels disclosure of any information or items designated in this

1 Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

2 ATTORNEYS’ EYES ONLY,” that Party must:

3 (a) promptly notify in writing the Designating Party. Such

4 notification shall include a copy of the subpoena or court order;

5 (b) promptly notify in writing the party who caused the subpoena

6 or order to issue in the other litigation that some or all of the material covered

7 by the subpoena or order is subject to this Protective Order. Such notification

8 shall include a copy of this Stipulated Protective Order; and

9 (c) cooperate with respect to all reasonable procedures sought to be

10 pursued by the Designating Party whose Protected Material may be affected. If

11 the Designating Party timely seeks a protective order, the Party served with the

12 subpoena or court order shall not produce any information designated in this

13 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

14 ATTORNEYS’ EYES ONLY” before a determination by the court from

15 which the subpoena or order issued, unless the Party has obtained the

16 Designating Party’s permission. The Designating Party shall bear the burden

17 and expense of seeking protection in that court of its confidential material and

18 nothing in these provisions should be construed as authorizing or encouraging

19 a Receiving Party in this Action to disobey a lawful directive from another

20 court.

21 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO

22 BE PRODUCED IN THIS LITIGATION

23 (a) The terms of this Order are applicable to information produced

24 by a Non-Party in this Action and designated as “CONFIDENTIAL” or

25 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such

26 information produced by Non-Parties in connection with this litigation is

27 protected by the remedies and relief provided by this Order. Nothing in these

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1 provisions should be construed as prohibiting a Non-Party from seeking

2 additional protections.

3 (b) In the event that a Party is required, by a valid discovery

4 request, to produce a Non-Party’s confidential information in its possession,

5 and the Party is subject to an agreement with the Non-Party not to produce the

6 Non-Party’s confidential information, then the Party shall:

7 (1) promptly notify in writing the Requesting Party and the Non-

8 Party that some or all of the information requested is subject to a

9 confidentiality agreement with a Non-Party;

10 (2) promptly provide the Non-Party with a copy of the Stipulated

11 Protective Order in this Action, the relevant discovery request(s), and a

12 reasonably specific description of the information requested; and

13 (3) make the information requested available for inspection by the

14 Non-Party, if requested.

15 (c) If the Non-Party fails to seek a protective order from this court

16 within 14 days of receiving the notice and accompanying information, the

17 Receiving Party may produce the Non-Party’s confidential information

18 responsive to the discovery request. If the Non-Party timely seeks a protective

19 order, the Receiving Party shall not produce any information in its possession

20 or control that is subject to the confidentiality agreement with the Non-Party

21 before a determination by the court. Absent a court order to the contrary, the

22 Non-Party shall bear the burden and expense of seeking protection in this court

23 of its Protected Material.

24 12. UNAUTHORIZED DISCLOSURE OF PROTECTED

25 MATERIAL

26 If a Receiving Party learns that, by inadvertence or otherwise, it has

27 disclosed Protected Material to any person or in any circumstance not authorized

28 under this Stipulated Protective Order, the Receiving Party must immediately (a)

1 notify in writing the Designating Party of the unauthorized disclosures, (b) use its

2 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

3 the person or persons to whom unauthorized disclosures were made of all the terms

4 of this Order, and (d) request such person or persons to execute the

5 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A.

6 13. INADVERTENT PRODUCTION OF PRIVILEGED OR

7 OTHERWISE PROTECTED MATERIAL

8 When a Producing Party gives notice to Receiving Parties that certain

9 inadvertently produced material is subject to a claim of privilege or other

10 protection, the obligations of the Receiving Parties are those set forth in

11 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to

12 modify whatever procedure may be established in an e-discovery order that

13 provides for production without prior privilege review. Pursuant to Federal

14 Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on

15 the effect of disclosure of a communication or information covered by the

16 attorney-client privilege or work product protection, the parties may

17 incorporate their agreement in the stipulated protective order submitted to the

18 court.

19 14. MISCELLANEOUS

20 14.1 Right to Further Relief. Nothing in this Order abridges the right of

21 any person to seek its modification by the Court in the future.

22 14.2 Right to Assert Other Objections. By stipulating to the entry of this

23 Protective Order, no Party waives any right it otherwise would have to object

24 to disclosing or producing any information or item on any ground not

25 addressed in this Stipulated Protective Order. Similarly, no Party waives any

26 right to object on any ground to use in evidence of any of the material covered

27 by this Protective Order.

28 14.3 Filing Protected Material. A Party that seeks to file under seal any

1 Protected Material must comply with Local Civil Rule 79-5. Protected

2 Material may only be filed under seal pursuant to a court order authorizing the

3 sealing of the specific Protected Material. If a Party’s request to file Protected

4 Material under seal is denied by the court, then the Receiving Party may file

5 the information in the public record unless otherwise instructed by the court.

6 15. FINAL DISPOSITION

7 After the final disposition of this Action, as defined in paragraph 6,

8 within 60 days of a written request by the Designating Party, each Receiving

9 Party must return all Protected Material to the Producing Party or destroy such

10 material. As used in this subdivision, “all Protected Material” includes all

11 copies, abstracts, compilations, summaries, and any other format reproducing

12 or capturing any of the Protected Material. Whether the Protected Material is

13 returned or destroyed, the Receiving Party must submit a written certification

14 to the Producing Party (and, if not the same person or entity, to the

15 Designating Party) by the 60-day deadline that (1) identifies (by category,

16 where appropriate) all the Protected Material that was returned or destroyed

17 and (2) affirms that the Receiving Party has not retained any copies, abstracts,

18 compilations, summaries or any other format reproducing or capturing any of

19 the Protected Material. Notwithstanding this provision, Counsel are entitled to

20 retain an archival copy of all pleadings, motion papers, trial, deposition, and

21 hearing transcripts, legal memoranda, correspondence, deposition and trial

22 exhibits, expert reports, attorney work product, and consultant and expert

23 work product, even if such materials contain Protected Material. Any such

24 archival copies that contain or constitute Protected Material remain subject to

25 this Protective Order as set forth in Section 6 (DURATION).

26 16. VIOLATION

27 Any violation of this Order may be punished by appropriate measures

28 including, without limitation, contempt proceedings and/or monetary

1 || sanctions.

3 Based on the parties’ Stipulation (Dkt. 36), and for good cause shown,

4 || ITIS SO ORDERED.

6 DATED: December 02, 2019

g /

9 JOHN D. EARLY

10 ited States Magistrate Judge

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2 I, __________________________________ hereby certify that I have read

3 and am fully familiar with the terms of the Protective Order entered in Dr. Andrew

4 Kerr v. Endologix, Inc. et al., Case No. 8:19-cv-01457-DOC-JDE (C.D. Cal.) and

5 hereby agree to comply with and be bound by the terms and conditions of said

6 Order unless and until modified by further Order of this Court.

7 I acknowledge that I am about to receive Confidential Information and/or

8 Highly Confidential Attorneys’ Eyes Only Information in said action and certify

9 my understanding that such Information is being provided to me pursuant to the

10 terms and restrictions of the Protective Order. I understand that such Information,

11 and any copies I make of any documentary material containing Confidential

12 Information and/or Highly Confidential Attorneys’ Eyes Only Information, or any

13 notes or other records that may be made regarding any such information, shall not

14 be disclosed to others, except other persons that are identified in and have agreed

15 to comply with and be bound by the terms of the Protective Order. I hereby

16 consent to the jurisdiction of said Court for purposes of enforcing this Order.

17 I hereby appoint __________________________ [print or type full name] of

18 _______________________________________ [print or type full address and

19 telephone number] as my California agent for service of process in connection with

20 this action or any proceedings related to enforcement of this Stipulated Protective

21 Order.

22 Dated this ____ day of _________________, 201__.

23 City and State where sworn and signed: _________________________________

24 Printed name: _______________________________

25 Signature: __________________________________

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2 I, __________________________________, have agreed to serve as a mock

3 juror in the case entitled: Dr. Andrew Kerr v. Endologix, Inc. et al., Case No. 8:19-

4 cv-01457-DOC-JDE (C.D. Cal.) (the “Case”).

5 I understand that I am about to receive Confidential Information regarding

6 the case and that Court has ordered this information to remain Confidential. I

7 agree that I am subject to this order and will not retain copies of documents or

8 items containing Confidential Information after my services as a mock juror and

9 that I will only use any Confidential Information in connection with my services as

10 a mock juror in this case, and for no other purpose.

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12 Date: _________________________

13 City and State: _________________________________

14 Printed name: _______________________________

15 Signature: __________________________________

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