Opinion

Breathe Technologies, Inc. v. Inogen, Inc.

Court: District Court, C.D. California
Filed: Oct 30, 2020
Cited by: 0 cases
Authority: More cited than 17.9%

even 22 stipulated protective orders require good cause showing

How later courts described this case

even 22 stipulated protective orders require good cause showing

Written by the judges who cited it.

The opinion

12 UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

15 Breathe Technologies, Inc., )

)

16 Plaintiff, ) Case No. 8:20-cv-00630-MSC-JDE

17 v. )

) STIPULATED PROTECTIVE

18 Inogen Inc., ) ORDER

19 Defendant. )

Pursuant to the parties’ stipulation, and good cause appearing therefor, the

Court makes the following findings and enters the following order.

1. PURPOSES AND LIMITATIONS

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

proprietary or private information for which special protection from public

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

warranted. Accordingly, the Parties stipulated to and petitioned the Court to enter

1 this Stipulated Protective Order, which is based on the Honorable John D. Early’s

2 model protective order. The Parties acknowledge that this Order does not confer

3 blanket protections on all disclosures or responses to discovery and that the

4 protection it affords from public disclosure and use extends only to the limited

5 information or items that are entitled to confidential treatment under the applicable

6 legal principles.

7 2. GOOD CAUSE STATEMENT

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

9 other valuable research, design, development, marketing, commercial, financial,

technical and/or proprietary information for which special protection from public

disclosure and from use for any purpose other than prosecution of this action is

warranted. Such confidential and proprietary materials and information consist of,

among other things, confidential business or financial information, information

regarding confidential business practices, or other confidential research, design,

marketing, development, or commercial information (including information

implicating privacy rights of third parties), information otherwise generally

unavailable to the public, or which may be privileged or otherwise protected from

disclosure under state or federal statutes, court rules, case decisions, or common law.

Specifically, information such as proprietary technical documents and information,

design specifications, design drawings, product development documents, sales

volumes, sales units, costs of goods sold, price structures, business costs, profit

margins, marketing strategies, and competitive business plans may need to be

disclosed only to a party’s outside counsel due to the potential for competitive harm.

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

of disputes over confidentiality of discovery materials, to adequately protect

information the Parties are entitled to keep confidential, to ensure that the Parties are

permitted reasonable necessary uses of such material in preparation for and in the

1 conduct of trial, to address their handling at the end of the litigation, and serve the

2 ends of justice, a protective order for such information is justified in this matter. To

3 adequately protect information the Parties are entitled to keep confidential and to

4 prevent competitive harm two tiers of confidentiality designations,

5 “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES

6 ONLY,” are required. It is the intent of the Parties that information will not be

7 designated as confidential for tactical reasons and that nothing be so designated

8 without a good faith belief that it has been maintained in a confidential, non-public

9 manner, and there is good cause why it should not be part of the public record of this

case.

3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE

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

Stipulated Protective Order does not entitle them to file confidential information

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

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

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

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

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

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

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

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

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

good cause or compelling reasons with proper evidentiary support and legal

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

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

as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES

ONLY” does not— without the submission of competent evidence by declaration,

1 establishing that the material sought to be filed under seal qualifies as confidential,

2 privileged, or otherwise protectable—constitute good cause.

3 Further, if a Party requests sealing related to a dispositive motion or trial, then

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

5 relief sought shall be narrowly tailored to serve the specific interest to be protected.

6 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For

7 each item or type of information, document, or thing sought to be filed or introduced

8 under seal, the party seeking protection must articulate compelling reasons,

9 supported by specific facts and legal justification, for the requested sealing order.

Again, competent evidence supporting the application to file documents under seal

must be provided by declaration.

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

its entirety will not be filed under seal if the confidential portions can be redacted. If

documents can be redacted, then a redacted version for public viewing, omitting only

the confidential, privileged, or otherwise protectable portions of the document, shall

be filed. Any application that seeks to file documents under seal in their entirety

should include an explanation of why redaction is not feasible.

4. DEFINITIONS

4.1 Action: Breathe Technologies, Inc. v. Inogen Inc., Case No. 8:20-cv-

00630-MSC-JDE (C.D. Cal.).

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

of information or items under this Order.

4.3 “CONFIDENTIAL” Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for

protection under Federal Rule of Civil Procedure 26(c), and as specified above in

the Good Cause Statement.

1 4.4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

2 Information or Items: information (regardless of how it is generated, stored or

3 maintained) or tangible things that qualify for protection under Federal Rule of Civil

4 Procedure 26(c), and as specified above in the Good Cause Statement. Information

5 may be designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

6 ONLY” only if, in good faith belief of the Designating Party (defined below) and its

7 Counsel, the information is among that considered to be most sensitive by the

8 Designating Party, including but not limited to trade secret or other confidential

9 research, development, financial, or other commercial information.

4.5 Counsel: Outside Counsel of Record (as well as their support staff).

4.6 Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY.”

4.7 Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,

among other things, testimony, transcripts, and tangible things), that are produced or

generated in disclosures or responses to discovery.

4.8 Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as

an expert witness or as a consultant in this Action.

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

House Counsel does not include Outside Counsel of Record or any other outside

counsel.

4.10 Non-Party: any natural person, partnership, corporation, association or

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

1 4.11 Outside Counsel of Record: attorneys who are not employees of a party

2 to this Action but are retained to represent a party to this Action and have appeared

3 in this Action on behalf of that party or are affiliated with a law firm that has

4 appeared on behalf of that party, and includes support staff.

5 4.12 Party: any party to this Action, including all of its officers, directors,

6 employees, consultants, retained experts, and Outside Counsel of Record (and their

7 support staffs).

8 4.13 Producing Party: a Party or Non-Party that produces Disclosure or

9 Discovery Material in this Action.

4.14 Professional Vendors: persons or entities that provide litigation support

services (e.g., photocopying, videotaping, translating, preparing exhibits or

demonstrations, and organizing, storing, or retrieving data in any form or medium)

and their employees and subcontractors.

4.15 Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY.”

4.16 Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.

5. SCOPE

The protections conferred by this Stipulation and Order cover not only

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

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

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

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

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

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

3 Protected Material at trial.

4 6. DURATION

5 6.1 Even after final disposition of this litigation, the confidentiality

6 obligations imposed by this Protective Order shall remain in effect, subject to

7 Paragraph 6.2, until a Designating Party agrees otherwise in writing or a court order

8 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal

9 of all claims and defenses in this Action, with or without prejudice; and (2) final

judgment herein after the completion and exhaustion of all appeals, rehearings,

remands, trials, or reviews of this action, including the time limits for filing any

motions or applications for extension of time pursuant to applicable law; and (3)

final judgment in Breathe Technologies, Inc. v. New Aera, Inc. et al., No. 5:19-cv-

07691-EJD (NDCA) after the completion and exhaustion of all appeals, rehearings,

remands, trials, or reviews of this action, including the time limits for filing any

motions or applications for extension of time pursuant to applicable law.

6.2 Notwithstanding Paragraph 6.1, once a case proceeds to trial,

information that was designated as CONFIDENTIAL or HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY or maintained pursuant to this

protective order used or introduced as an exhibit at trial becomes public and will be

presumptively available to all members of the public, including the press, unless

compelling reasons supported by specific factual findings to proceed otherwise are

made to the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81

(distinguishing “good cause” showing for sealing documents produced in discovery

from “compelling reasons” standard when merits-related documents are part of court

record). Accordingly, the terms of this protective order do not extend beyond the

commencement of the trial for any documents used or introduced as an exhibit at

1 trial. Similarly, the terms of this protective order do not extend beyond the

2 commencement of the trial for any testimony presented at trial, either live or by

3 deposition.

4 7. DESIGNATING PROTECTED MATERIAL

5 7.1 Exercise of Restraint and Care in Designating Material for Protection.

6 Each Party or Non-Party that designates information or items for protection under

7 this Order must take care to limit any such designation to specific material that

8 qualifies under the appropriate standards. To the extent practicable, the Designating

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

or oral or written communications that qualify so that other portions of the material,

documents, items or communications for which protection is not warranted are not

swept unjustifiably within the ambit of this Order.

Mass, indiscriminate or routinized designations are prohibited. Designations

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

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

unnecessary expenses and burdens on other parties) may expose the Designating

Party to sanctions.

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

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

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

7.2 Manner and Timing of Designations. Except as otherwise provided in

this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material

that qualifies for protection under this Order must be clearly so designated before

the material is disclosed or produced.

Designation in conformity with this Order requires:

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

documents, but excluding transcripts of depositions or other pretrial or trial

1 proceedings), to designate the material as “CONFIDENTIAL” or “HIGHLY

2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the Producing Party affix at a

3 minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”)

4 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (hereinafter

5 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY legend”), to each

6 page that contains protected material. If only a portion of the material on a page

7 qualifies for protection, the Producing Party also must clearly identify the protected

8 portion(s) (e.g., by making appropriate markings in the margins), to the extent

9 practicable. Where compliance with this paragraph is not practicable due to the form

of the document (e.g., Excel spreadsheets), the Party must affix the applicable legend

to a coversheet or placeholder document associated with the document.

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

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

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

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

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

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

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

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

Producing Party must affix the “CONFIDENTIAL legend” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY legend” as appropriate to each

page that contains Protected Material. If only a portion of the material on a page

qualifies for protection, the Producing Party also must clearly identify the protected

portion(s) (e.g., by making appropriate markings in the margins), to the extent

practicable. Where compliance with this paragraph is not practicable due to the form

of the document (e.g., Excel spreadsheets), the Party must affix the applicable legend

to a coversheet or placeholder document associated with the document.

1 (b) for a deposition transcript, the Producing Party shall designate the

2 transcript as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

3 EYES ONLY” by requesting such treatment thereof either on the record at the time

4 of the deposition or by written notice to all Outside Counsel of Record after service

5 of the final deposition transcript. If confidential treatment of a transcript is requested

6 by a Party by written notice after completion of a deposition, such written notice

7 shall be provided to all Outside Counsel of Record within fourteen (14) days after

8 completion and service of the final transcript. Such written notice shall specifically

9 identify by page and line number all portions of the transcript that are designated as

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” in accordance with this Order. All counsel receiving such notice shall be

responsible for marking the copies of the designated transcript or portion thereof in

their possession or control as provided for in the written notice. The Parties shall

not disseminate a deposition transcript or the contents thereof beyond the persons

designated in Paragraph 9.3 below for a period of fourteen (14) days after completion

and service of the final transcript, except that portions of the transcript may be filed

with an application to file under seal pursuant to Local Rule 79-5 in connection with

this Action. Documents or things used as exhibits at a deposition that a Party desires

to be subject to this Order shall be separately stamped or marked

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY.” The Producing Party will have the right to exclude from attendance at a

deposition, during such time as the Protected Material is to be disclosed, any person

other than the deponent, counsel, the court reporter, the videographer, designated

experts, and any person(s) agreed upon by counsel for the Producing Party.

for any other tangible items, that the Producing Party affix in a prominent place on

the exterior of the container or containers in which the information is stored the

1 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

2 EYES ONLY.” If only a portion or portions of the information warrants protection,

3 the Producing Party, to the extent practicable, shall identify the protected portion(s).

4 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

6 the Designating Party’s right to secure protection under this Order for such material.

7 Upon timely correction of a designation, the Receiving Party must make reasonable

8 efforts to assure that the material is treated in accordance with the provisions of this

9 Order.

8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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

Scheduling Order.

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

resolution process under Local Rule 37-1 et seq.

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

joint stipulation pursuant to Local Rule 37-2.

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

Designating Party. Frivolous challenges, and those made for an improper purpose

(e.g., to harass or impose unnecessary expenses and burdens on other Parties) may

expose the Challenging Party to sanctions. Unless the Designating Party has waived

or withdrawn the confidentiality designation, all Parties shall continue to afford the

material in question the level of protection to which it is entitled under the Producing

Party’s designation until the Court rules on the challenge.

9. ACCESS TO AND USE OF PROTECTED MATERIAL

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

disclosed or produced by another Party or by a Non-Party in connection with this

1 Action only for prosecuting, defending or attempting to settle this Action. Such

2 Protected Material may be disclosed only to the categories of persons and under the

3 conditions described in this Order. When the Action has been terminated, a

4 Receiving Party must comply with the provisions of section 15 below (FINAL

5 DISPOSITION).

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

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

8 authorized under this Order.

9 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party, a

Receiving Party may disclose any information or item designated

“CONFIDENTIAL” only to:

(a) the Receiving Party’s Outside Counsel of Record in this Action, as

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

necessary to disclose the information for this Action;

(b) the officers, directors, and employees (including House Counsel) of

the Receiving Party to whom disclosure is reasonably necessary for this Action;

disclosure is reasonably necessary for this Action and who have signed the

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

(d) the court and its personnel;

(e) court reporters, videographers, and their staff;

(f) Professional Vendors in the business of collecting, hosting,

processing, and/or producing e-discovery materials who have a contractual

obligation to a Party or its Outside Counsel of Record to maintain e-discovery

materials in confidence and use them solely to fulfill its obligations to Party or its

Outside Counsel;

1 (g) professional jury or trial consultants, mock jurors, and Professional

2 Vendors other than those identified in paragraph (f) immediately above to whom

3 disclosure is reasonably necessary for this Action and who have signed the

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

5 (h) the author or recipient of a document containing the information or

6 a custodian or other person who otherwise possessed or knew the information;

7 (i) during their depositions, witnesses, and attorneys for witnesses, in

8 the Action to whom disclosure is reasonably necessary provided: either (1) the

9 witness is an officer, director, or employee of the Designating Party, or a consultant

or expert retained on behalf of the Designating Party for this litigation; or (2) the

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

and they will not be permitted to keep any confidential information, unless otherwise

agreed by the Designating Party or ordered by the court. Pages of transcribed

deposition testimony or exhibits to depositions that reveal Protected Material may

be separately bound by the court reporter and may not be disclosed to anyone except

as permitted under this Stipulated Protective Order; and

(j) any mediators or settlement officers and their supporting personnel,

mutually agreed upon by any of the Parties engaged in settlement discussions.

9.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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

in writing by the Designating Party, a Receiving Party may disclose any information

or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

only to:

(a) the Receiving Party’s Outside Counsel of Record in this Action, as

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

necessary to disclose the information for this Action;

1 (b) Experts (as defined in this Order) of the Receiving Party to whom

2 disclosure is reasonably necessary for this Action and who have signed the

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

4 (c) the court and its personnel;

5 (d) court reporters, videographers, and their staff;

6 (e) Professional Vendors in the business of collecting, hosting,

7 processing, and/or producing e-discovery materials who have a contractual

8 obligation to a Party or its Outside Counsel of Record to maintain e-discovery

9 materials in confidence and use them solely to fulfill its obligations to Party or its

Outside Counsel.

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

Vendors other than those identified in paragraph (e) immediately above to whom

disclosure is reasonably necessary for this Action and who have signed the

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

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

a custodian or other person who otherwise possessed or knew the information;

(h) any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the Parties engaged in settlement discussions.

9.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to

Experts.

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

Designating Party, a Party that seeks to disclose to an Expert (as defined in this

Protective Order) any information or item that has been designated “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7 by

another Party first must make a written request to the Designating Party that (1)

identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’

1 EYES ONLY” information that the Receiving Party seeks permission to disclose to

2 the Expert, (2) sets forth the full name of the Expert and the city and state of his or

3 her primary residence, (3) attaches a copy of the Expert’s current resume, (4)

4 identifies the Expert’s current employer(s), (5) identifies each person or entity from

5 whom the Expert has received compensation or funding for work in his or her areas

6 of expertise or to whom the expert has provided professional services, including in

7 connection with a litigation, at any time during the preceding five years,1 and (6)

8 identifies (by name and number of the case, filing date, and location of court) any

9 litigation in connection with which the Expert has offered expert testimony,

including through a declaration, report, or testimony at a deposition or trial, during

the preceding five years.

(b) A Party that provides written notice containing the information

specified in the preceding paragraph may disclose the subject Protected Material to

the identified Expert unless, within seven days of delivering the notice, the Party

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

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

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

resolve the matter by agreement within seven days of the written objection. If no

agreement is reached, the Party seeking to make the disclosure to the Expert may

file a motion as provided in Civil Local Rule 37 (and in compliance with Civil Local

Rule 79-5, if applicable) seeking permission from the court to do so. Any such

25 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 without violating any confidentiality agreements,

27 and the Party seeking to disclose to the Expert shall be available to meet and confer

with the Designating Party regarding any such engagement.

1 motion must describe the circumstances with specificity, set forth in detail the

2 reasons why the disclosure to the Expert is reasonably necessary, assess the risk of

3 harm that the disclosure would entail, and suggest any additional means that could

4 be used to reduce that risk. In addition, any such motion must be made in accordance

5 with Civil Local Rules 37-1 and 37-2.

6 In any such proceeding, the Party opposing disclosure to the Expert

7 shall bear the burden of proving that the risk of harm that the disclosure would entail

8 (under the safeguards proposed) outweighs the Receiving Party’s need to disclose

9 the Protected Material to its Expert.

10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

PRODUCED IN OTHER LITIGATION

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

that compels disclosure of any information or items designated in this Action as

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” that Party must:

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

shall include a copy of the subpoena or court order;

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

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

subpoena or order is subject to this Protective Order. Such notification shall include

a copy of this Stipulated Protective Order; and

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

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

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

as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” before a determination by the court from which the subpoena or order

1 issued, unless the Party has obtained the Designating Party’s permission. The

2 Designating Party shall bear the burden and expense of seeking protection in that

3 court of its confidential material and nothing in these provisions should be construed

4 as authorizing or encouraging a Receiving Party in this Action to disobey a lawful

5 directive from another court.

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

7 PRODUCED IN THIS LITIGATION

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

9 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by

Non-Parties in connection with this litigation is protected by the remedies and relief

provided by this Order. Nothing in these provisions should be construed as

prohibiting a Non-Party from seeking additional protections.

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

produce a Non-Party’s confidential information in its possession, and the Party is

subject to an agreement with the Non-Party not to produce the Non-Party’s

confidential information, then the Party shall:

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

that some or all of the information requested is subject to a confidentiality agreement

with a Non-Party;

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

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

specific description of the information requested; and

(3) make the information requested available for inspection by the Non-

Party, if requested.

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

1 Party may produce the Non-Party’s confidential information responsive to the

2 discovery request. If the Non-Party timely seeks a protective order, the Receiving

3 Party shall not produce any information in its possession or control that is subject to

4 the confidentiality agreement with the Non-Party before a determination by the

5 court. Absent a court order to the contrary, the Non-Party shall bear the burden and

6 expense of seeking protection in this court of its Protected Material.

7 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

9 Protected Material to any person or in any circumstance not authorized under this

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

to retrieve all unauthorized copies of the Protected Material, (c) inform the person

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

Order, and (d) request such person or persons to execute the “Acknowledgment an

Agreement to Be Bound” attached hereto as Exhibit A.

13. INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain

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

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

Procedure 26(b)(5)(B). The production of privileged or work-product protected

documents, electronically stored information or information is not a waiver of the

privilege or protection from discovery in this Action or in any other federal or state

proceeding. This Order shall be interpreted to provide the maximum protection

allowed by Federal Rule of Evidence 502.

If a Receiving Party discovers that privileged Disclosure or Discovery

Material has been inadvertently or unintentionally produced, it shall notify the

1 Producing Party in writing as soon as reasonably practicable but in no event more

2 than 14 days after learning of the inadvertent disclosure.

3 14. MISCELLANEOUS

4 14.1 Right to Further Relief. Nothing in this Order abridges the right of any

5 person to seek its modification by the Court in the future.

6 14.2 Right to Assert Other Objections. By stipulating to the entry of this

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

8 disclosing or producing any information or item on any ground not addressed in this

9 Stipulated Protective Order. Similarly, no Party waives any right to object on any

ground to use in evidence of any of the material covered by this Protective Order.

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

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

only be filed under seal pursuant to a court order authorizing the sealing of the

specific Protected Material. If a Party’s request to file Protected Material under seal

is denied by the court, then the Receiving Party may file the information in the public

record unless otherwise instructed by the court. Local Civil Rule 79-5’s reference to

“documents designated by another as confidential pursuant to a protective order” (or

the like) encompasses documents designated as “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL-ATTORNEYS’ EYES ONLY under this Order.

15. PROSECUTION BAR

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

access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” technical

information shall not be involved in the prosecution of patents or patent applications

relating to: respiratory devices and technology, including ventilators, gas delivery

systems, nasal interfaces, or any other respiratory devices or technology

(collectively, the “Field of Technology”) before any foreign or domestic agency,

including the United States Patent and Trademark Office (“the Patent Office”). For

1 purposes of this paragraph, “prosecution” includes directly or indirectly drafting,

2 amending, advising, or otherwise affecting (1) the scope of patent claims; (2)

3 strategies for advancing a patent application through examination, such as which

4 arguments to present to an examiner, which procedures of a foreign or domestic

5 agency to invoke or utilize, whether to expedite or delay examination proceedings,

6 whether claims should be added or cancelled, etc.; (3) the filing of applications,

7 including provisional applications, PCT applications, non-provisional applications,

8 continuing or related applications (e.g., continuations, continuations in-part,

9 divisional applications, applications claiming priority under the Paris Convention,

or any other type of continuing or related application), design patent applications, or

any other type of patent application; (4) payment of maintenance fees, annuities,

renewal fees, or other fees necessary to maintain the pendency of an application or

active term of a patent; or (5) otherwise advising on or affecting the pursuit of patent

rights. “Prosecution” also includes representing a party in any proceedings before a

domestic or foreign agency where the party seeks to obtain patent rights, namely ex

parte examination proceedings, ex parte reexamination proceedings, ex parte

appeals before the Patent Trial and Appeal Board, and reissue proceedings. To avoid

any doubt, “prosecution” as used in this paragraph does not include representing a

party challenging a patent before a domestic or foreign agency (including, but not

limited to, a reissue protest, ex parte reexamination, inter partes reexamination, inter

partes review, or post grant proceedings) or defending a patent in an inter partes

review, post grant review, or covered business method proceeding. This Prosecution

Bar shall begin when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY” information is first received by the affected individual and shall end

two (2) years after final disposition of this Action.

To ensure compliance with the purpose of this provision, the Parties shall

create an “Ethical Wall” between those persons who access “HIGHLY

1 CONFIDENTIAL-ATTORNEYS’ EYES ONLY” information and any individuals

2 who prosecute any patents or patent application pertaining to the Field of

3 Technology.

4 16. FINAL DISPOSITION

5 After the final disposition of this Action, as defined in paragraph 6, within 60

6 days of a written request by the Designating Party, each Receiving Party must return

7 all Protected Material to the Producing Party or destroy such material. As used in

8 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

9 summaries, and any other format reproducing or capturing any of the Protected

Material. Whether the Protected Material is returned or destroyed, the Receiving

Party must submit a written certification to the Producing Party (and, if not the same

person or entity, to the Designating Party) by the 60-day deadline that (1) identifies

(by category, where appropriate) all the Protected Material that was returned or

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

abstracts, compilations, summaries or any other format reproducing or capturing any

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

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

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

reports, attorney work product, and consultant and expert work product, even if such

materials contain Protected Material. Any such archival copies that contain or

constitute Protected Material remain subject to this Protective Order as set forth in

Section 6 (DURATION).

1 17. MIOLATION

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

3 |lincluding, without limitation, contempt proceedings and/or monetary sanctions.

> IS SO ORDERED.

7 || DATED: October 30, 2020 Lie LL af

8 J D. EARLY

9 nited States Magistrate Judge

EXHIBIT A

1 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2 I, _______________________________________ [print or type full name],

3 of ________________________________________________________________

4 [print or type full address], declare under penalty of perjury that I have read in its

5 entirety and understand the Stipulated Protective Order that was issued by the United

6 States District Court for the Central District of California on October 30, 2020 in the

7 case of Breathe Technologies, Inc. v. Inogen, Inc., No. 8:20-cv-00630-MSC-JDE

8 (C.D. Cal.). I agree to comply with and to be bound by all the terms of this

9 Stipulated Protective Order and I understand and acknowledge that failure to so

comply could expose me to sanctions and punishment in the nature of contempt. I

solemnly promise that I will not disclose in any manner any information or item that

is subject to this Stipulated Protective Order to any person or entity except in strict

compliance with the provisions of this Order.

I further agree to submit to the jurisdiction of the United States District Court

for the Central District of California for the purpose of enforcing the terms of this

Stipulated Protective Order, even if such enforcement proceedings occur after

termination of this action. I hereby appoint ___________________________ [print

or type full name] of ____________________________________________ [print

or type full address and telephone number] as my California agent for service of

process in connection with this action or any proceedings related to enforcement of

this Stipulated Protective Order. Alternatively, I agree that such service of process

may be served upon me by sending it by mail to

__________________________________________________ [mailing address].

Date:

City and State where sworn and signed:

Printed name:

Signature:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.