distinguishing “good cause” 16 showing for sealing documents produced in discovery from “compelling reasons” 17 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 16 showing for sealing documents produced in discovery from “compelling reasons” 17 standard when merits-related documents are part of court record
Written by the judges who cited it.
The opinion
1
UNITED STATES DISTRICT COURT
2
3 CENTRAL DISTRICT OF CALIFORNIA
4
PAINTERS AND ALLIED TRADES Case No.: 2:17-cv-07223-JWH(ASx)
5 DISTRICT COUNCIL 82 HEALTH CARE
FUND, a third-party healthcare payor fund,
6 ANNIE M. SNYDER, a California
consumer, RICKEY D. ROSE, a Missouri
7 consumer, JOHN CARDARELLI, a New AMENDED PROTECTIVE ORDER1
Jersey consumer, MARLYON K.
8 BUCKNER, a Florida consumer, and
SYLVIE BIGORD, a Massachusetts
9 consumer, on behalf of themselves and ALL
others similarly situated,
10
11 Plaintiffs,
12 vs.
13 TAKEDA PHARMACEUTICAL
COMPANY LIMITED, a Japanese
14 corporation; TAKEDA
PHARMACEUTICALS USA, Inc., an
15 Illinois corporation (fka TAKEDA
PHARMACEUTICALS NORTH
16 AMERICA, Inc.); and ELI LILLY &
COMPANY, an Indiana corporation,
17
Defendants.
18
19
20 1. A. PURPOSES AND LIMITATIONS
21 Discovery in this action is likely to involve production of confidential,
22 proprietary, or private information for which special protection from public
23 disclosure and from use for any purpose other than prosecuting this litigation may
24 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
25 enter the following Stipulated Protective Order. The parties acknowledge that this
26
1 This Amended Stipulated Protective Order amends and supersedes the First Amended
27
Case Management Order that was entered as part of the MDL proceedings, before this
case was transferred to this Court. See In re Actos (Pioglitazone) Products Liability
28
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. The parties further acknowledge, as set forth
5 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
6 file confidential information under seal; Civil Local Rule 79-5 sets forth the
7 procedures that must be followed and the standards that will be applied when a party
8 seeks permission from the court to file material under seal.
9 B. GOOD CAUSE STATEMENT
10 This action is likely to involve confidential medical information, proprietary
11 licensing, distribution, marketing, design, development, research and manufacturing
12 information regarding products and medicines, unpublished clinical studies, scientific
13 literature, and related documents, information concerning competitors, trade secrets,
14 customer and pricing lists and other valuable research, development, commercial,
15 financial, technical and/or proprietary information for which special protection from
16 public disclosure and from use for any purpose other than prosecution of this action is
17 warranted. Such confidential and proprietary materials and information consist of,
18 among other things, confidential business or financial information, information
19 regarding confidential business practices, or other confidential research, development,
20 or commercial information (including information implicating privacy rights of third
21 parties), information otherwise generally unavailable to the public, or which may be
22 privileged or otherwise protected from disclosure under state or federal statutes,
23 court rules, case decisions, or common law. Accordingly, to expedite the flow of
24 information, to facilitate the prompt resolution of disputes over confidentiality of
25 discovery materials, to adequately protect information the parties are entitled to keep
26 confidential, to ensure that the parties are permitted reasonable necessary uses of
27 such material in preparation for and in the conduct of trial, to address their handling
28 at the end of the litigation, and serve the ends of justice, a protective order for such
1 information is justified in this matter. It is the intent of the parties that information
2 will not be designated as confidential for tactical reasons and that nothing be so
3 designated without a good faith belief that it has been maintained in a confidential,
4 non-public manner, and there is good cause why it should not be part of the public
5 record of this case.
6 2. DEFINITIONS
7 2.1 Action: this pending federal lawsuit.
8 2.2 Challenging Party: a Party or Non-Party that challenges the designation of
9 information or items under this Order.
10 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it
11 is generated, stored or maintained) or tangible things that qualify for protection
12 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
13 Cause Statement.
14 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
15 support staff).
16 2.5 Designating Party: a Party or Non-Party that designates information or items
17 that it produces in disclosures or in responses to discovery as
18 “CONFIDENTIAL.”
19 2.6 Disclosure or Discovery Material: all items or information, regardless of the
20 medium or manner in which it is generated, stored, or maintained (including,
21 among other things, testimony, transcripts, and tangible things), that are
22 produced or generated in disclosures or responses to discovery in this matter.
23 2.7 Expert: a person with specialized knowledge or experience in a matter
24 pertinent to the litigation who has been retained by a Party or its counsel to serve
25 as an expert witness or as a consultant in this Action.
26 2.8 House Counsel: attorneys who are employees of a party to this Action.
27 House Counsel does not include Outside Counsel of Record or any other outside
28 counsel.
1 2.9 Non-Party: any natural person, partnership, corporation, association, or other
2 legal entity not named as a Party to this action.
3 2.10 Outside Counsel of Record: attorneys who are not employees of a party to
4 this Action but are retained to represent or advise a party to this Action and have
5 appeared in this Action on behalf of that party or are affiliated with a law firm
6 which has appeared on behalf of that party, and includes support staff.
7 2.11 Party: any party to this Action, including all of its officers, directors,
8 employees, consultants, retained experts, and Outside Counsel of Record (and
9 their support staffs).
10 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
11 Discovery Material in this Action.
12 2.13 Professional Vendors: persons or entities that provide litigation support
13 services (e.g., photocopying, videotaping, translating, preparing exhibits or
14 demonstrations, and organizing, storing, or retrieving data in any form or
15 medium) and their employees and subcontractors.
16 2.14 Protected Material: any Disclosure or Discovery Material that is designated
17 as “CONFIDENTIAL.”
18 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
19 from a Producing Party.
20 3. SCOPE
21 The protections conferred by this Stipulation and Order cover not only Protected
22 Material (as defined above), but also (1) any information copied or extracted from
23 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
24 Material; and (3) any testimony, conversations, or presentations by Parties or their
25 Counsel that might reveal Protected Material. Any use of Protected Material at trial
26 shall be governed by the orders of the trial judge. This Order does not govern the use
27 of Protected Material at trial.
28 4. DURATION
1 If, in connection with any motion or other proceeding except trial, any
2 Receiving Party intends to offer into evidence any documents designated confidential
3 pursuant to this Order, such evidence shall be filed under seal and in accordance with
4 the applicable local court rules, and unless otherwise ordered by the Court, shall be
5 sealed with any proceedings involving disclosure of the evidence. The Parties shall be
6 entitled to identify and use documents for trial purposes regardless of a confidentiality
7 designation, provided that for any documents identified on exhibit lists for use at trial,
8 the Parties shall be entitled to seek appropriate protection, by motions in limine or
9 otherwise, for any document so identified.
10 Once a case proceeds to trial, all of the information used at trial that was designated as
11 confidential or maintained pursuant to this protective order becomes public and will be
12 presumptively available to all members of the public, including the press, unless
13 compelling reasons supported by specific factual findings to proceed otherwise are
14 made to the trial judge in advance of the trial. See Kamakana v. City and County of
15 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
16 showing for sealing documents produced in discovery from “compelling reasons”
17 standard when merits-related documents are part of court record). Accordingly, absent
18 a Court order to the contrary, the terms of this protective order do not extend beyond
19 the commencement of the trial for Disclosure or Discovery Material used at trial.
20 After final disposition of this litigation, the confidentiality obligations imposed by this
21 Order shall remain in effect as to any CONFIDENTIAL documents that were not
22 previously made public, either by the parties’ agreement or because they were used as
23 an exhibit at a public trial, until a Designating Party agrees otherwise in writing or a
24 court order otherwise directs. Final disposition shall be deemed to be the later of (1)
25 dismissal of all claims and defenses in this Action, with or without prejudice; and (2)
26 final judgment herein after the completion and exhaustion of all appeals, rehearings,
27 remands, trials, or reviews of this Action, including the time limits for filing any
28 motions or applications for extension of time pursuant to applicable law.
1 5. DESIGNATING PROTECTED MATERIAL
2 5.1 Exercise of Restraint and Care in Designating Material for Protection.
3 Each Party or Non-Party that designates information or items for protection under this
4 Order must take care to limit any such designation to specific material that qualifies
5 under the appropriate standards. The Designating Party must designate for protection
6 only those parts of material, documents, items, or oral or written communications that
7 qualify so that other portions of the material, documents, items, or communications for
8 which protection is not warranted are not swept unjustifiably within the ambit of this
9 Order.
10 Mass, indiscriminate, or routinized designations are prohibited. Designations
11 that are shown to be clearly unjustified or that have been made for an improper
12 purpose (e.g., to unnecessarily encumber the case development process or to impose
13 unnecessary expenses and burdens on other parties) may expose the Designating Party
14 to sanctions.
15 If it comes to a Designating Party’s attention that information or items that it
16 designated for protection do not qualify for protection, that Designating Party must
17 promptly notify all other Parties that it is withdrawing the inapplicable designation.
18 5.2 Manner and Timing of Designations. Except as otherwise provided in this
19 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
20 or ordered, Disclosure or Discovery Material that qualifies for protection under this
21 Order must be clearly so designated before the material is disclosed or produced.
22 Designation in conformity with this Order requires:
23 (a) For information in documentary form (e.g., paper or electronic documents,
24 but excluding transcripts of depositions or other pretrial or trial proceedings),
25 that the Producing Party affix at a minimum, the legend “CONFIDENTIAL”
26 (hereinafter “CONFIDENTIAL legend”), to each page that contains
27 protected material. If only a portion or portions of the material on a page
28
1 qualifies for protection, the Producing Party also must clearly identify the
2 protected portion(s) (e.g., by making appropriate markings in the margins).
3 A Party or Non-Party that makes original documents available for
4 inspection need not designate them for protection until after the inspecting
5 Party has indicated which documents it would like copied and produced.
6 During the inspection and before the designation, all of the material made
7 available for inspection shall be deemed “CONFIDENTIAL.” After the
8 inspecting Party has identified the documents it wants copied and produced,
9 the Producing Party must determine which documents, or portions thereof,
10 qualify for protection under this Order. Then, before producing the specified
11 documents, the Producing Party must affix the “CONFIDENTIAL legend” to
12 each page that contains Protected Material. If only a portion or portions of
13 the material on a page qualifies for protection, the Producing Party also must
14 clearly identify the protected portion(s) (e.g., by making appropriate
15 markings in the margins)
16 (b) In the case of deposition testimony relating to Protected Material, deposition
17 testimony may be designated as Protected Material: (1) on the record at the
18 deposition; or (2) after the deposition by promptly notifying, in writing, the
19 parties and those who were present at the deposition, in the manner described
20 below. The portion of the transcript in which Protected Material is offered,
21 identified or discussed, including exhibits containing or consisting of
22 Protected Material, shall also be treated as confidential without the need for a
23 separate designation under this section 5.2(b). Any additional confidentiality
24 designations shall be made within thirty (30) calendar days after the
25 transcript has been received by counsel making the designation and shall
26 specify the testimony being designated confidential by page and line
27 number(s). This deadline may be extended by agreement of the Parties.
28 Until the expiration of such thirty (30) day period (or extended period, if
1 agreed to by the Parties), the entire text of the deposition, including exhibits,
2 shall be treated as Protected Material under this Order.
3 (c) For information produced in some form other than documentary and for any
4 other tangible items, that the Producing Party affix in a prominent place on
5 the exterior of the container or containers in which the information is stored
6 the legend “CONFIDENTIAL.” If only a portion or portions of the
7 information warrants protection, the Producing Party, to the extent
8 practicable, shall identify the protected portion(s).
9 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
10 designate qualified information or items does not, standing alone, waive the
11 Designating Party’s right to secure protection under this Order for such material. Upon
12 timely correction of a designation, the Receiving Party must make reasonable efforts to
13 assure that the material is treated in accordance with the provisions of this Order.
14 5.4. Actos MDL Documents. Any documents produced in this Action, which were
15 previously produced as part of the Actos MDL and were designated as confidential in
16 the Actos MDL, will be treated as Protected Material in this Action.
17 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
18 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation
19 of confidentiality at any time that is consistent with the Court’s Scheduling Order.
20 6.2 Meet and Confer. The Challenging Party shall initiate the informal dispute
21 resolution process set forth in the Court's Procedures and Schedules. See
22 http://www.cacd.uscourts.gov/honorable-alka-sagar
23 6.3 The burden of persuasion in any such challenge proceeding shall be on the
24 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
25 to harass or impose unnecessary expenses and burdens on other parties) may expose
26 the Challenging Party to sanctions. Unless the Designating Party has waived or
27 withdrawn the confidentiality designation, all parties shall continue to afford the
28
1 material in question the level of protection to which it is entitled under the Producing
2 Party’s designation until the Court rules on the challenge.
3 7. ACCESS TO AND USE OF PROTECTED MATERIAL
4 7.1 Basic Principles. A Receiving Party may use Protected Material that is
5 disclosed or produced by another Party or by a Non-Party in connection with this
6 Action only for prosecuting, defending, or attempting to settle this Action. Such
7 Protected Material may be disclosed only to the categories of persons and under the
8 conditions described in this Order. When the Action has been terminated, a Receiving
9 Party must comply with the provisions of section 14 below (FINAL DISPOSITION).
10 Protected Material must be stored and maintained by a Receiving Party at a
11 location and in a secure manner that ensures that access is limited to the persons
12 authorized under this Order. Parties in possession of Protected Material designated by
13 another Party shall exercise the same care with regard to the storage, custody, or use of
14 the Protected Material as they would apply to their own Protected Material of the same
15 or comparable sensitivity. Receiving Parties must take reasonable precautions to
16 protect Protected Material from loss, misuse and unauthorized access, disclosure,
17 alteration and destruction, including but not limited to the following:
18 (a) Protected Material in an electronic format shall be maintained in a
19 secure manner that applies standard industry practices regarding data security,
20 including but not limited to application of access control rights to those persons
21 authorized to access Protected Material under this Order;
22 (b) An audit trail of use and access to the Protected Material shall be
23 maintained until thirty (30) days after the Receiving Party’s return or destruction of the
24 Protected Material pursuant to paragraph 14;
25 (c) Any downloaded Protected Material shall be stored only on devices
26 (e.g., laptop, tablet, smartphone, thumb drive, portable hard drive) that are encrypted
27 and password protected with access limited to persons entitled to access Protected
28 Material under this Order. If the user is unable to encrypt and password protect the
1 device, then the Protected Material shall be encrypted and password protected at the
2 file level;
3 (d) Protected Material in paper form is to be maintained in a secure
4 location with access limited to persons authorized to access Protected Material under
5 this Order; and
6 (e) Summaries of Protected Material, including any lists, memoranda, indices
7 or compilations prepared or based on an examination of Protected Material that quote
8 from or paraphrase Protected Material in a manner that enables it to be identified shall
9 be accorded the same security status as the underlying Protected Material.
10 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
11 ordered by the court or permitted in writing by the Designating Party, a Receiving
12 Party may disclose any information or item designated “CONFIDENTIAL” only to:
13 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
14 employees of said Outside Counsel of Record to whom it is reasonably
15 necessary to disclose the information for this Action;
16 (b) the officers, directors, and employees (including House Counsel) of the
17 Receiving Party to whom disclosure is reasonably necessary for this Action;
18 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
19 reasonably necessary for this Action and who have signed the
20 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
21 (d) the court and its personnel;
22 (e) court reporters and their staff;
23 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to
24 whom disclosure is reasonably necessary for this Action and who have signed
25 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
26 (g) the author or recipient of a document containing the information or a custodian
27 or other person who otherwise possessed or knew the information;
28
1 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to
2 whom disclosure is reasonably necessary provided:
3 (1) the deposing party requests that the witness sign the form attached as
4 Exhibit A hereto; and
5 (2) they will not be permitted to keep any confidential information unless
6 they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
7 unless otherwise agreed by the Designating Party or ordered by the court. Pages
8 of transcribed deposition testimony or exhibits to depositions that reveal
9 Protected Material may be separately bound by the court reporter and may not
10 be disclosed to anyone except as permitted under this Stipulated Protective
11 Order; and
12 (i) any mediator or settlement officer, and their supporting personnel, mutually
13 agreed upon by any of the parties engaged in settlement discussions.
14 Notwithstanding the provisions of 7.2, a Receiving Party may not disclose
15
“CONFIDENTIAL” Information or Items, or any portion thereof, to any of the
16
following entities: (a) a pharmacy benefit manager other than Prime; (b) any
17
prescription drug manufacturer that is not already a Party to this case; (c) any
18
19 pharmacy; (d) any employee or agent of any entity specified in (a)-(c) above; or (e)
20 any industry/professional association or advocacy group known to represent any entity
21 specified in (a)-(c) above. The prohibitions in this paragraph apply to the parties
22
involved in this Action unless explicitly stated otherwise. The prohibitions in this
23
paragraph do not preclude any party from disclosing Protected Material to experts
24
under paragraph 7.2(c).
25
7.3 Disclosure of “CONFIDENTIAL” – Attorneys’ Eyes Only Information or
26
Items. A Party may supplement the “CONFIDENTIAL” mark (see paragraph 5.2(a))
27
with the words “attorney’s eyes only,” in which case a Receiving Party may disclose a
28
1 “CONFIDENTIAL” document so designated as provided in paragraph 7.2 with the
2 exception it may not be revealed to another party ’s officers, directors, or employees
3 under paragraph 7.2(b), but this limitation shall not apply to a party’s House Counsel.
4 The right to designate documents “attorney’s eyes only” is limited to highly
5 competitive sensitive documents, which, if disclosed, would subject the producing
6 party to a competitive disadvantage or reveal sensitive and proprietary trade secrets.
7 Any party may challenge the designation of a document as “attorney’s eyes only”
8 consistent with the procedure set forth in paragraph 6, above.
9 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
10 OTHER LITIGATION.
11 If a party is served with a subpoena or a court order issued in other litigation that
12 compels disclosure of any information or items designated in this Action as
13 “CONFIDENTIAL,” that Party must:
14 (a) promptly notify in writing the Designating Party. Such notification shall include
15 a copy of the subpoena or court order;
16 (b) promptly notify in writing the party who caused the subpoena or order to issue
17 in the other litigation that some or all of the material covered by the subpoena or order
18 is subject to this Protective Order. Such notification shall include a copy of this
19 Stipulated Protective Order; and
20 (c) cooperate with respect to all reasonable procedures sought to be pursued by the
21 Designating Party whose Protected Material may be affected. If the Designating Party
22 timely seeks a protective order, the Party served with the subpoena or court order shall
23 not produce any information designated in this action as “CONFIDENTIAL” before a
24 determination by the court from which the subpoena or order issued, unless the Party
25 has obtained the Designating Party’s permission. The Designating Party shall bear the
26 burden and expense of seeking protection in that court of its confidential material and
27 nothing in these provisions should be construed as authorizing or encouraging a
28 Receiving Party in this Action to disobey a lawful directive from another court.
1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
2 IN THIS LITIGATION.
3 (a) The terms of this Order are applicable to information produced by a Non-
4 Party in this Action and designated as “CONFIDENTIAL.” Such information
5 produced by Non-Parties in connection with this litigation is protected by the remedies
6 and relief provided by this Order. Nothing in these provisions should be construed as
7 prohibiting a Non-Party from seeking additional protections.
8 (b) In the event that a Party is required, by a valid discovery request, to produce
9 a Non-Party’s confidential information in its possession, and the Party is subject to an
10 agreement with the Non-Party not to produce the Non-Party’s confidential information,
11 then the Party shall:
12 (1) promptly notify in writing the Requesting Party and the Non-Party that
13 some or all of the information requested is subject to a confidentiality agreement
14 with a Non-Party;
15 (2) promptly provide the Non-Party with a copy of the Stipulated
16 Protective Order in this Action, the relevant discovery request(s), and a
17 reasonably specific description of the information requested; and
18 (3) make the information requested available for inspection by the Non-
19 Party, if requested.
20 (c) If the Non-Party fails to seek a protective order from this court within 14
21 days of receiving the notice and accompanying information, the Receiving Party may
22 produce the Non-Party’s confidential information responsive to the discovery request.
23 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
24 any information in its possession or control that is subject to the confidentiality
25 agreement with the Non-Party before a determination by the court. Absent a court
26 order to the contrary, the Non-Party shall bear the burden and expense of seeking
27 protection in this court of its Protected Material.
28 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
1 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
2 Protected Material to any person or in any circumstance not authorized under this
3 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
4 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
5 all unauthorized copies of the Protected Material, (c) inform the person or persons to
6 whom unauthorized disclosures were made of all the terms of this Order, and (d)
7 request such person or persons to execute the “Acknowledgment and Agreement to Be
8 Bound” that is attached hereto as Exhibit A.
9 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
10 PROTECTED MATERIAL
11 Pursuant to Federal Rule of Evidence 502(d) and (e), the inadvertent or mistaken
12 production of documents subject to the attorney-client privilege, work-product
13 immunity, or other legal privilege or doctrine protecting information from discovery
14 (“Inadvertently Produced Documents”) shall not constitute a waiver of the immunity or
15 privilege. The Producing Party shall notify the Receiving Party in writing within a
16 reasonable period of time from the discovery of the inadvertent or mistaken
17 production. If such notification is made, such Inadvertently Produced Documents and
18 all copies thereof shall, upon request, be returned to the Producing Party, all notes or
19 other work product of the Receiving Party reflecting the contents of such materials
20 shall be destroyed, and such returned or destroyed material shall be deleted from any
21 litigation-support or other database. No use shall be made of such Inadvertently
22 Produced Documents during depositions or at trial, nor shall they be disclosed to
23 anyone who was not given access to them prior to the request to return or destroy
24 them. The Party receiving such Inadvertently Produced Documents may, after receipt
25 of the Producing Party’s notice of inadvertent production, move the Court to dispute
26 the claim of privilege or immunity.
27 The production of any Disclosure or Discovery Material, whether inadvertent or
28 not, shall be without prejudice to any subsequent claim by the Producing Party that
1 such Disclosure or Discovery Material is subject to the attorney-client privilege, work-
2 product immunity, or other legal privilege or doctrine protecting information from
3 discovery, and shall not be deemed a waiver of any such privilege or protection in
4 either this Action or any other federal or state proceeding.
5 Failure to assert work product protection, attorney-client privilege, and/or other
6 legal privilege protecting information from discovery in this lawsuit as to one
7 document shall not be deemed to constitute a waiver in whole or in part, of any
8 immunity or privilege protection as to any other document, even if the documents
9 involve the same or similar subject matter.
10 12. REDACTION OF CONFIDENTIAL, IRRELEVANT, AND PRIVILEGED
11 INFORMATION
12 (a) The Producing Party may redact from Disclosure or Discovery
13 Materials, or portions thereof, information subject to the attorney-client or other
14 privilege, information necessary to comply with applicable state and federal laws and
15 regulations, and proprietary, confidential, or personal information not relevant to the
16 claims or defenses of the parties.
17 (b) The Producing Party shall indicate on each redaction a brief, but
18 specific identifier stating the basis for the redaction, e.g., “protected personal
19 information,” “employee privacy,” “attorney-client privilege.” For redacted
20 Disclosure or Discovery Materials included in an electronic production, a “Yes” will
21 appear in the “Redacted” field included with the objective coding in the load file for
22 the document production. Where a redaction is subsequently lifted by order of the
23 Court or by agreement of the Parties (e.g., subject to a privilege challenge), the
24 Producing Party shall produce replacement media for that document, including the
25 unredacted TIFF, text or OCR files, and objective coding, with appropriate load files.
26 (c) Responsive Disclosure or Discovery Materials withheld from
27 production based on a claim of privilege of any kind shall be reflected on a privilege
28
1 log created in accordance with the Federal Rules of Civil Procedure or pursuant to any
2 subsequent agreement of the Parties or order of the Court.
3 (d) Challenges to redactions shall be made in accordance with the
4 procedures for challenging confidentiality designations, as set forth in section 6, above.
5 Nothing herein is intended to alter the burden of proof for establishing the relevance of
6 information under Federal Rule 26(b). Any failure to redact information described
7 above does not waive any right to claims of privilege or privacy, or any objection,
8 including relevancy, as to the specific document or any other document that is or will
9 be produced.
10 13. MISCELLANEOUS
11 13.1 Right to Further Relief. Nothing in this Order abridges the right of any
12 person to seek its modification by the Court in the future.
13 13.2 Right to Assert Other Objections. By stipulating to the entry of this
14 Protective Order no Party waives any right it otherwise would have to object to
15 disclosing or producing any information or item on any ground not addressed in
16 this Stipulated Protective Order. Similarly, no Party waives any right to object
17 on any ground to use in evidence of any of the material covered by this
18 Protective Order.
19 13.3 Filing Protected Material. A Party that seeks to file under seal any
20 Protected Material must comply with Civil Local Rule 79-5. Protected Material
21 may only be filed under seal pursuant to a court order authorizing the sealing of
22 the specific Protected Material at issue. If a Party's request to file Protected
23 Material under seal is denied by the court, then the Receiving Party may file the
24 information in the public record unless otherwise instructed by the court.
25 13.4 Disclosure or Discovery Materials and Foreign Law. Any entity organized
26 under the laws of a country other than the United States, including but not
27 limited to Japan, France, Germany, and the United Kingdom, that produces
28 information in this litigation may designate as confidential those Disclosure or
1 Discovery Materials in any form (including electronic or paper form) containing
2 “Protected Data” within the meaning of the applicable data protection or privacy
3 laws, if any.2 Without prejudice to the right of a party to seek production and/or
4 de-designation, “Protected Data” could potentially include, but is not limited to,
5 any and all data which concerns an identified person or a person who is
6 identifiable with recourse to additional information available to the data
7 processor (e.g., reference to an individual by his/her title or position within the
8 company whose identify is specified in other available sources of information).
9 In particular and without any limitation to either party’s ability to make or to
10 challenge any confidentiality designation, this could, under specific
11 circumstances, apply to the following documents:
12 a. correspondence (electronic or on paper) which identifies or through
13 recourse to other sources of information available to the data processor allows
14 identification of its author(s)/sender(s) and/or its addressees/recipients (e.g., all
15 email correspondence, letters and faxes, including transmission reports);
16 b. documents, such as memoranda, notes, and presentations, if they
17 identify or allow identification of their author/sender and/or its
18 addressee/recipient through recourse to other information available to the data
19 processor;
20
21
2 “Protected Data” shall refer to any information that a party believes in good faith
22 to be subject to foreign data protection laws. Protected Data constitutes highly
23 sensitive materials requiring special protection. Examples of such data protection laws
include but are not limited to Directive 95/46/EC of the European Parliament and of
24
the Council of 24 October 1995 on the Protection of Individuals with Regard to the
25 Processing of Personal Data and on the Free Movement of Such Data, 1995 O J.
(L281/31) (European Union personal information); Data Protection Act 1998 (c. 29)
26
(United Kingdom personal information); the German Federal Data Protection Act
27 (Germany personal information); French Data Protection Act. Law No. 78-17 of
January, 6, 1978, J.C.P. 1978, El, No. 44692; and The Personal Information Protection
28
1 c. minutes of internal or external meetings as far as they include
2 information about which individual(s) did or did not attend the meeting;
3 d. personnel records and information; and
4 e. any document containing private medical information.
5 13. FINAL DISPOSITION
6 After the final disposition of this Action, as defined in paragraph 4, within 60
7 days of a written request by the Designating Party, each Receiving Party must return
8 all Protected Material to the Producing Party or destroy such material. As used in this
9 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
10 summaries, and any other format reproducing or capturing any of the Protected
11 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
12 must submit a written certification to the Producing Party (and, if not the same person
13 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
14 category, where appropriate) all the Protected Material that was returned or destroyed
15 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
16 compilations, summaries or any other format reproducing or capturing any of the
17 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
18 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
19 legal memoranda, correspondence, deposition and trial exhibits, expert reports,
20 attorney work product, and consultant and expert work product, even if such materials
21 contain Protected Material. Any such archival copies that contain or constitute
22 Protected Material remain subject to this Protective Order as set forth in Section 4
23 (DURATION).
24 14. VIOLATION.
25 Any violation of this Order may be punished by any and all appropriate
26 measures including, without limitation, contempt proceedings and/or monetary
27 sanctions.
28
1 DATED: April 29, 2021 BAUM, HEDLUND, ARISTEI &
GOLDMAN, P.C.
2 /s/ R. Brent Wisner
R. Brent Wisner, Esq. (SBN: 276023)
3
rbwisner@baumhedlundlaw.com
4 10940 Wilshire Blvd, 17th floor
Los Angeles, CA 90024
5
Tel: (310) 207-3233
6 Fax: (310) 820-7444
Attorney for Plaintiffs
7
8 DATED: April 29, 2021 NORTON ROSE FULBRIGHT US LLP
9 /s/ Darryl Anderson
Darryl Anderson (pro hac vice)
10 Darryl.anderson@nortonrosefulbright.com
11 1301 McKinney, Suite 5100
Houston, Texas 77010-3095
12 Attorney for Defendants
13 TAKEDA PHARMACEUTICAL COMPANY
LIMITED TAKEDA PHARMACEUTICALS
14 USA INC. (F/K/ATAKEDA
15 PHARMACEUTICAL NORTH AMERICA,
INC.)
16
17 DATED: April 29, 2021 BOWMAN AND BROOKE LLP
/s/ Randall L. Christian
18 Randall L. Christian (pro hac vice)
19 Randall.christian@bowmanandbrooke.com
2901Via Fortuna Drive, Ste. 500
20 Austin, Texas 78746
21 Tel: (512) 874-3800
Fax: (512) 874-380
22
Attorneys for Defendant
23 ELI LILLY AND COMPANY
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1 SIGNATURE CERTIFICATION
2 Pursuant to L.R. 5-4.3.4(a)(2)(i), I hereby certify that I have obtained
authorization to affix Defendant’s electronic signature to this document.
3
4 DATED: April 29, 2021 BAUM, HEDLUND, ARISTEI &
GOLDMAN, P.C.
5
/s/ R. Brent Wisner
6 R. Brent Wisner, Esq. (SBN: 276023)
rbwisner@baumhedlundlaw.com
7
10940 Wilshire Blvd, 17th floor
8 Los Angeles, CA 90024
Tel: (310) 207-3233
9
Fax: (310) 820-7444
10 Attorney for Plaintiffs
11
12
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
13
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DATED: April 30, 2021 ________/ _s _/_ S_a_g_a_r____________
15 Honorable Alka Sagar
United States Magistrate Judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [print or type full name], of
5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California
8 on [date] in the case of PAINTERS AND ALLIED TRADES DISTRICT COUNCIL 82
9 HEALTH CARE FUND, ANNIE M. SNYDER, RICKEY D. ROSE, MARLYON K.
10 BUCKNER, and SYLVIE BIGORD, on behalf of themselves and ALL others similarly
11 situated vs. TAKEDA PHARMACEUTICAL COMPANY LIMITED, TAKEDA
12 PHARMACEUTICALS USA, INC., (fka TAKEDA PHARMACEUTICALS NORTH
13 AMERICA, Inc.); and ELI LILLY & COMPANY, Case No. 2:17-cv-07223-JWH(ASx).
14 I agree to comply with and to be bound by all the terms of this Stipulated Protective
15 Order and I understand and acknowledge that failure to so comply could expose me to
16 sanctions and punishment in the nature of contempt. I solemnly promise that I will not
17 disclose in any manner any information or item that is subject to this Stipulated
18 Protective Order to any person or entity except in strict compliance with the provisions
19 of this Order. I further agree to submit to the jurisdiction of the United States District
20 Court for the Central District of California for the purpose of enforcing the terms of
21 this Stipulated Protective Order, even if such enforcement proceedings occur after
22 termination of this action. I hereby appoint __________________________ [print or
23 type full name] of _______________________________________ [print or type full
24 address and telephone number] as my California agent for service of process in
25 connection with this action or any proceedings related to enforcement of this
26 Stipulated Protective Order.
27
28 Date: ______________________________________
1 City and State where sworn and signed: ________________________________
2
3 Printed name: _______________________________
4
5 Signature: __________________________________
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