even stipulated protective orders require good 24 cause showing
How later courts described this case
- even stipulated protective orders require good 24 cause showing
Written by the judges who cited it.
The opinion
1
LATHAM & WATKINS LLP
2 Thomas W. Yeh (CA Bar No. 287118)
thomas.yeh@lw.com
3 355 South Grand Avenue, Suite 100
Los Angeles, CA 90071
4 Tel: (213) 485-1234
Fax: (213) 891-8763
5
Michael A. Morin (pro hac vice)
6 michael.morin@lw.com
555 Eleventh Street, NW, Suite 1000
7 Washington, D.C. 20004
Tel: (202) 637-2200
8 Fax: (202) 637-2201
9 S. Giri Pathmanaban (CA Bar No. 284802)
giri.pathmanaban@lw.com
10 140 Scott Drive
Menlo Park, CA 94025
11 Tel: (650) 328-4600
Fax: (650) 463-2600
12
Allison Harms (CA Bar No. 299214)
13 allison.harms@lw.com
Blake R. Davis (CA Bar No. 294360)
14 blake.davis@lw.com
505 Montgomery Street, Suite 2000
15 San Francisco, CA 94111
Tel: (415) 391-0600
16 Fax: (415) 395-8095
17 Attorneys for Defendants
18
19
UNITED STATES DISTRICT COURT
20
CENTRAL DISTRICT OF CALIFORNIA
21
22
FLEXSTENT, LLC No. 5:18-cv-02479-RGK-KK
23
Plaintiff, Stipulated Protective Order
24
v.
25
ABBOTT LABORATORIES, et al.
26
Defendants.
27
1 Pursuant to Federal Rule of Civil Procedure 26(c), the parties to the above-
2 captioned lawsuit (the “Action”) have stipulated and agreed to the terms and entry of,
3 and the Court hereby orders the parties to abide by, this Protective Order on
4 Confidentiality (the “Protective Order”).
5 This Protective Order shall govern disclosures, production and handling of
6 documents, answers to interrogatories, responses to requests for admissions,
7 depositions, testimony at hearings or trial, pleadings, exhibits, and other information or
8 tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c),
9 exchanged by the parties, produced by third parties, or filed with the Court in this
10 Action (collectively, “Exchanged Information”).
11 In support of this Order, the Court finds that:
12 I. GOOD CAUSE STATEMENT
13 This Action is likely to involve trade secrets, customer and pricing lists and
14 other valuable research, development, commercial, financial, technical and/or
15 proprietary information for which special protection from public disclosure and from
16 use for any purpose other than prosecution of the litigations between the parties 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, court
23 rules, case decisions, or common law. The parties stipulate that disclosure of this
24 information would cause competitive harm to the parties. For example, the parties
25 believe that competitors will gain an unfair advantage if they learn the parties'
26 Confidential Information, such as financial information, accounting information,
27 customer lists, vendor lists, costs or profits structure, sales information, proprietary
1 product designs, product lines, business and marketing strategy or information about
2 operations. Accordingly, to expedite the flow of information, to facilitate the prompt
3 resolution of disputes over confidentiality of discovery materials, to adequately protect
4 information the parties are entitled to keep confidential, to ensure that the parties are
5 permitted reasonable necessary uses of such material in preparation for and in the
6 conduct of trial, to address their handling at the end of the litigation, and serve the
7 ends of justice, a protective order for such information is justified in this matter. It is
8 the intent of the parties that information will not be designated as confidential for
9 tactical reasons and that nothing be so designated without a good faith belief that it has
10 been maintained in a confidential, non-public manner, and there is good cause why it
11 should not be part of the public record of this case.
12 ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
13 The parties further acknowledge, as set forth below, that this Stipulated
14 Protective Order does not entitle them to file confidential information under seal;
15 Local Civil Rule 79-5 sets forth the procedures that must be followed and the
16 standards that will be applied when a party seeks permission from the Court to file
17 material under seal.
18 There is a strong presumption that the public has a right of access to judicial
19 proceedings and records in civil cases. In connection with non-dispositive motions,
20 good cause must be shown to support a filing under seal. See Kamakana v. City &
21 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
22 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,
23 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
24 cause showing), and a specific showing of good cause or compelling reasons with
25 proper evidentiary support and legal justification, must be made with respect to
26 Confidential Information that a party seeks to file under seal. The parties' mere
27 designation of Exchanged Information as Confidential Information does not—without
1 the submission of competent evidence by declaration, establishing that the material
2 sought to be filed under seal qualifies as confidential, privileged, or otherwise
3 protectable—constitute good cause.
4 Further, if a party requests sealing related to a dispositive motion or trial, then
5 compelling reasons for the sealing must be shown, and the relief sought shall be
6 narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific
7 Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of
8 information, document, or thing sought to be filed or introduced under seal in
9 connection with a dispositive motion or trial, the party seeking protection must
10 articulate compelling reasons, supported by specific facts and legal justification, for
11 the requested sealing order. Again, competent evidence supporting the application to
12 file documents under seal must be provided by declaration.
13 Any document that is not confidential, privileged, or otherwise protectable in its
14 entirety will not be filed under seal if the confidential portions can be redacted. If
15 documents can be redacted, then a redacted version for public viewing, omitting only
16 the confidential, privileged, or otherwise protectable portions of the document, shall
17 be filed. Any application that seeks to file documents under seal in their entirety
18 should include an explanation of why redaction is not feasible. The parties agree to
19 serve redacted versions of any documents filed under seal within 48 hours of the
20 filing. The parties also agree to take reasonable measures to minimize redactions to
21 documents filed under seal.
22 II. SCOPE
23 1. The protections conferred by this Order cover not only Exchanged
24 Information, but also (1) any information copied or extracted from Exchanged
25 Information; (2) all copies, excerpts, summaries, or compilations of Exchanged
26 Information; and (3) any testimony, conversations, or presentations by parties or their
27 counsel that might reveal Exchanged Information. However, the protections conferred
1 by this Order do not cover the following information: (a) any information that is in the
2 public domain at the time of disclosure to a receiving party or becomes part of the
3 public domain after its disclosure to a receiving party as a result of publication not
4 involving a violation of this Order, including information that has become part of the
5 public record through trial or otherwise; and (b) any information known to the
6 receiving party prior to the disclosure or obtained by the receiving party after the
7 disclosure from a source who obtained the information lawfully and under no
8 obligation of confidentiality to the designating party. Any use of Protected Material at
9 trial shall be governed by the orders of the trial judge. This Order does not govern the
10 use of Protected Material at trial.
11 III. DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION
12 2. Any party or non-party may designate as “CONFIDENTIAL” or
13 “HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY” any Exchanged
14 Information that contains non-public, sensitive trade secret, marketing, customer,
15 financial, research, product-development, regulatory, manufacturing/distribution or
16 other information protectable under Federal Rule of Civil Procedure 26(c)(1)(G)
17 (collectively “Confidential Information”), as defined in paragraph 9 below.
18 3. Confidential Information of the disclosing party shall be used by
19 receiving parties solely for purposes of this Action absent a court order.
20 4. Confidential Information shall be initially produced only to outside
21 counsel of record representing the parties in this Action.
22 5. Outside counsel of record may disclose the respective categories of
23 Confidential Information to the following persons for use in connection with this
24 Action:
25 a. Information designated as HIGHLY CONFIDENTIAL –
26 ATTORNEYS' EYES ONLY or CONFIDENTIAL:
27 i. other outside counsel who have been retained by the parties with
1 respect to this Action, including all attorneys, paralegals, law
2 students, stenographic and clerical employees working under the
3 supervision of such counsel, as well as court reporters,
4 interpreters, translators, copy services, litigation support (including
5 document imaging), and database/coding services retained by
6 counsel;
7 ii. any expert or consultant, not an employee of a party, who is
8 retained to assist in preparation of this Action, and clerical
9 employees, assistants, researchers and technicians of, or under the
10 supervision of, such experts, with disclosure only to the extent
11 necessary to perform such work, and subject to a Prosecution Bar
12 and/or Acquisition Bar as defined below;
13 iii. the Court, under seal as provided in this Protective Order;
14 iv. in-house attorneys identified in accordance with paragraph 6
15 below who are providing instruction and/or assistance to outside
16 counsel with respect to this Action, and subject to a Prosecution
17 Bar and/or Acquisition Bar as defined below, as well as their
18 immediate paralegals and staff, to whom disclosure is reasonably
19 necessary for the litigation of this Action provided that any such
20 person has agreed to be bound by the terms of this Order by
21 signing the agreement attached hereto as Exhibit A;
22 v. court reporters present in their official capacity at a hearing,
23 deposition, or other proceeding in this Action;
24 vi. professional jury or trial consultants and mock jurors who have
25 signed the Declaration (Exhibit A), which does not need to be
26 disclosed to the designating party unless the Court for good cause
27 orders otherwise; and
1 vii. graphics or design consultants retained to prepare demonstratives
2 or other exhibits for use in this Action.
3 6. The parties have agreed that the following in-house attorneys and
4 attorney consultant(s) may have access to HIGHLY CONFIDENTIAL-ATTORNEYS'
5 EYES ONLY or CONFIDENTIAL Information, as specifically noted below, in
6 accordance with the provisions of this Protective Order:
7 a. For Plaintiffs:
8 i. Joon Yoon, General Counsel.
9 b. For Defendants:
10 i. David Mendelson, Divisional Vice President and Associate
11 General Counsel, Litigation, Abbott Laboratories;
12 ii. Jennifer Embry, Senior Counsel, Intellectual Property Litigation,
13 Abbott Laboratories.
14 iii. Rachel Bach, Counsel, Intellectual Property Litigation, Abbott
15 Laboratories.
16 iv. Gary Schneiderman, fmr. Division Counsel, Patent Litigation,
17 Abbott Laboratories.
18 c. The parties may seek to designate substitute in-house attorneys
19 according to the provisions of this Protective Order. Prior to
20 disclosure of Confidential Information to such persons, the party
21 seeking disclosure shall provide written notice to the producing party
22 identifying the names of additional designees. If the producing party
23 objects to the disclosure of Confidential Information to such
24 additional designees, the producing party shall object in writing,
25 within five (5) business days of receipt of the written notice, and state
26 the basis for its objection. Within five (5) business days of the written
27 objection, the parties shall meet and confer. If the parties do not
1 reach resolution, the party seeking disclosure shall follow the
2 procedures set forth by the Court for raising discovery disputes with
3 the Court.
4 7. Prior to the disclosure of any Confidential Information to those persons
5 described in paragraph 6, or to any outside counsel not of record in this Action, each
6 of those persons must read this Protective Order and sign the Declaration (Exhibit A
7 hereto). A copy of such signed Declaration must be retained by outside counsel of
8 record for the party disclosing the Confidential Information under the terms of this
9 Protective Order until the final termination of this Action (including any appeals).
10 8. Persons receiving Confidential Information are prohibited from
11 disclosing it, or any information derived therefrom, to any person except in
12 conformance with this Protective Order. The terms of this Protective Order do not
13 apply to the Court and court personnel, who are subject only to the court’s internal
14 procedures regarding the handling of material filed or lodged, including material filed
15 or lodged under seal.
16 IV. DEFINITION OF CONFIDENTIAL INFORMATION
17 9. Criteria for Classification:
18 a. A party or non-party may designate Confidential Information as
19 CONFIDENTIAL if the party or non-party reasonably believes that
20 the information contains or discloses trade secrets or other non-public
21 technical, personal, or commercial information, or contains or
22 discloses information protected by a right to privacy under federal or
23 state law or any other applicable privilege or right related to
24 confidentiality or privacy;
25 b. A party or non-party may designate Confidential Information as
26 HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY if such
27 information (i) satisfies the criteria for designation as
1 CONFIDENTIAL, under paragraph 9(a) above, (ii) is extremely
2 sensitive Confidential Information, the disclosure of which to another
3 party or non-party would create a substantial risk of serious harm that
4 could not be avoided by less restrictive means, and (iii) discloses
5 information relating to: a party or non-party's manufacturing,
6 processing, and/or developing of any products or product-candidates
7 (including, but not limited to, sensitive research materials,
8 development materials and strategic plans), scientific research,
9 customers, or pricing and sales information. Subject to the foregoing,
10 such HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY
11 information may include without limitation: trade secrets; technical
12 information; technical practices, methods, or other know-how;
13 pending but unpublished patent applications; Board materials; pricing
14 data; financial data; sales information; customer-confidential
15 information; agreements or relationships with third parties; market
16 projections or forecasts; strategic business plans, selling or marketing
17 strategies; new product development; testing; manufacturing costs; or
18 information regarding employees.
19 V. EXPERTS
20 10. For any expert proposed to be designated pursuant to paragraph 5(a)(2),
21 the party seeking to disclose Confidential Information to the expert first must provide
22 to all attorneys of record for the other parties a written notice that: (1) attaches the
23 expert’s signed Declaration (Exhibit A hereto), (2) sets forth the full name of the
24 proposed recipient and the city and state of his or her primary residence; (3) attaches a
25 copy of the proposed recipient's current resume; (4) identifies the proposed recipient's
26 current employer(s); and (5) identifies (by name and number of the case, filing date,
27 and location of court, if known) any litigation in connection with which the expert has
1 offered expert testimony, including through a declaration, report, or testimony at a
2 deposition or at trial during the preceding four years.1
3 11. Unless counsel for the party that produced the Confidential Information
4 notifies the proposing attorney in writing of an objection to the proposed designee
5 within five (5) business days of receipt of notification, such designee shall be deemed
6 qualified to receive Confidential Information. In the event of an objection, the parties
7 shall first informally try to resolve the objection in good faith within three (3) business
8 days. If the objection cannot be resolved, the parties may request appropriate relief
9 from the Court. The parties specifically reserve the right to object to the disclosure of
10 Confidential Information to a proposed expert should the proposed expert be
11 employed by the objecting party's competitor. The burden of proving that the
12 designated person should not be designated is on the objecting party. Any motion
13 challenging a party’s designation of material as Confidential Information or Privileged
14 Material, seeking to compel Privileged Material, seeking relief in connection with
15 disclosing information to expert witnesses, or seeking to modify or amend the
16 proposed Protective Order must be brought in strict compliance with Local Rules 37-1
17 and 37-2 (including the Joint Stipulation requirement).
18 VI. DESIGNATION OF CONFIDENTIAL INFORMATION
19 12. Each party or non-party that designates information or items for
20 protection under this Order must take care to limit any such designation to specific
21 material that qualifies under the appropriate standards. To the extent it is practical to
22 do so, the designating party must designate for protection only those parts of material,
23
1 If the proposed expert believes any of this information specified in paragraph 10
24 (5) is subject to a confidentiality obligation to a third party, then the proposed expert
should provide whatever information the proposed expert believes can be disclosed
25 without violating any confidentiality agreements. The party seeking to disclose to the
proposed expert should notify the other party that information has been withheld and
26 describe the nature of the withheld information, and the parties shall meet-and-confer
regarding whether the expert should be qualified under this Protective Order
27 notwithstanding the withholding of information. Any disputes should be resolved in
accordance with the provisions of paragraph 11.
1 documents, items, or oral or written communications that qualify - so that other
2 portions of the material, documents, items, or communications for which protection is
3 not warranted are not swept unjustifiably within the ambit of this Order.
4 13. Parties shall designate Confidential Information as follows:
5 a. In the case of information in documentary form (e.g., paper or
6 electronic documents, but excluding transcripts of depositions or
7 other pretrial or trial proceedings), designation shall be made by
8 placing prior to production the following legends on each page of
9 such document (or each page that contains Confidential Information
10 if that can be practically determined); CONFIDENTIAL or HIGHLY
11 CONFIDENTIAL – ATTORNEYS' EYES ONLY. For pleadings
12 and discovery responses, such marking need only appear on the first
13 page of the document. Any Confidential Information not reduced to
14 documentary or physical form or which cannot be conveniently
15 labeled shall be so designated by a party by serving a written
16 notification on the receiving party before or at the time of disclosure.
17 b. To the extent that a party initially produces documents for inspection
18 (i.e., prior to making copies), no marking need be made by the
19 producing party in advance of the inspection. For purposes of the
20 inspection, all documents shall be treated as containing HIGHLY
21 CONFIDENTIAL - ATTORNEYS' EYES ONLY information. After
22 the receiving party selects specified documents for copying, the
23 producing party shall appropriately mark the copies of the selected
24 documents by placing prior to production the following legends on
25 each page of such document that contains Confidential Information:
26 CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS'
27 EYES ONLY.
1 c. In the case of transcripts of depositions or other pretrial or trial
2 proceedings, designation of the portion of the original and all copies
3 of any transcript (including exhibits) which contains Confidential
4 Information shall be made by a statement to such effect on the record
5 in the course of the proceeding or upon review of such transcript by
6 counsel for the party whose Confidential Information is discussed in
7 the transcript. Such designation shall be provided to opposing
8 counsel within five (5) business days after counsel's receipt of the
9 final transcript of the proceeding. Unless otherwise agreed by the
10 parties in writing or on the record at the proceeding, all transcripts
11 shall be treated as HIGHLY CONFIDENTIAL – ATTORNEYS'
12 EYES ONLY from the date of the proceeding until the end of such
13 five (5) day period. Transcripts containing Confidential Information
14 shall have an obvious legend with the appropriate designation on the
15 title page and every subsequent page that the transcript contains
16 Confidential Information. If only portions of a transcript are
17 designated as Confidential Information, then the title page shall be
18 followed by a list of all pages (including line numbers as appropriate)
19 that have been designated as Confidential Information and the level
20 of protection being asserted by the designating party. The
21 designating party shall inform the court reporter of these
22 requirements.
23 d. For information produced in some form other than documentary and
24 for any other tangible items, designation shall be made by affixing in
25 a prominent place on the exterior of the container or containers in
26 which the information or item is stored the legend
27 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
1 ATTORNEYS' EYES ONLY.” If only a portion or portions of the
2 information or item warrant protection, the producing party, to the
3 extent practicable, shall identify the protected portion(s) and specify
4 the level of protection being asserted.
5 14. A failure to designate qualified information or items, whether by
6 inadvertence or otherwise, does not, standing alone, waive in whole or in part the
7 designating party's right to secure protection under this Order for such material. Upon
8 subsequent correction of a designation, the receiving party must make reasonable
9 efforts to assure that the material is treated in accordance with any revised
10 designations under the provisions of this Order and promptly collect any copies of the
11 material that have been provided to individuals other than those authorized under
12 paragraph 5 of this Order. The designating party may also request the individuals to
13 execute the Declaration (Exhibit A).
14 15. A party shall not be obligated to challenge the propriety of any
15 Confidential Information designation at the time made, and failure to do so shall not
16 preclude a subsequent challenge. In the event that any party disagrees at any stage of
17 the proceedings with a confidentiality designation, such party shall provide to the
18 producing party written notice of its disagreement with the designation. The parties
19 shall first try to informally resolve such dispute in good faith. If the dispute cannot be
20 resolved within five (5) business days of the written notice, the party challenging the
21 designation may request appropriate relief from the Court. The burden of proving that
22 information has been properly designated as Confidential Information is on the party
23 making such designation. Notwithstanding any dispute as to the confidentiality of
24 information, such information shall nevertheless be treated in accordance with the
25 designation that was proposed in accordance with the provisions of this Protective
26 Order unless and until such designation is removed or amended by order of the Court
27 or by written consent of the designating party. Any motion challenging a party’s
1 designation of material as Confidential Information or Privileged Material, seeking to
2 compel Privileged Material, seeking relief in connection with disclosing information
3 to expert witnesses, or seeking to modify or amend the proposed Protective Order
4 must be brought in strict compliance with Local Rules 37-1 and 37-2 (including the
5 Joint Stipulation requirement).
6 VII. PROSECUTION BAR
7 16. Absent prior written consent, any outside counsel of record for Plaintiff,
8 any expert for Plaintiff, or individual(s) identified in Paragraph 6(a) above, who
9 receives and accesses Defendants' HIGHLY CONFIDENTIAL – ATTORNEYS'
10 EYES ONLY information that includes non-public technical information is precluded
11 from performing, or providing (verbally or in tangible form, in whole or in part) such
12 Confidential Information received under this Order to any person involved in
13 performing, the following tasks: drafting, prosecuting, or supervising or providing
14 advice regarding the drafting or prosecution, of any patent applications with the
15 United States Patent and Trademark Office (“USPTO”) or any similar proceedings in
16 any other country, involving any patent application having claims or disclosures
17 relating to coronary stents. This preclusion is limited to proceedings involving patents
18 and patent applications having an effective filing date before this Action, during this
19 Action, or within two (2) years after the final termination of this Action. For purposes
20 of clarity: (1) “prosecution” does not include reexamination, reissue, interference
21 proceedings, or equivalent proceedings (e.g., post-grant review, inter partes review,
22 oppositions) and any similar proceedings in any other country, except that all persons
23 who review Defendants' HIGHLY CONFIDENTIAL – ATTORNEYS EYES' ONLY
24 INFORMATION that includes non-public technical information are prohibited from
25 performing, or providing (verbally or in tangible form, in whole or in part) such
26 Confidential Information received under this Order to any person involved in
27 performing the following tasks: drafting, or supervising or providing advice regarding
1 drafting, new or amended claims in any such proceedings; (2) “supervising” refers to
2 directing others how to draft and/or prosecute, or providing advice regarding the
3 drafting or prosecution, of any patents and applications in the scope of the Prosecution
4 Bar. This Prosecution Bar shall begin when “HIGHLY CONFIDENTIAL –
5 ATTORNEYS' EYES ONLY” that includes non-public technical information is first
6 received and accessed by the affected individual and shall end two (2) years after the
7 final termination of this Action, or at an earlier date agreed upon in writing by the
8 parties. For the avoidance of doubt, this Prosecution Bar is not triggered by financial
9 information relating to Defendants' coronary stents that is selected based on non-
10 public technical information regarding Defendants’ coronary stents, but does not itself
11 disclose any such technical information.
12 VIII. ACQUISITION BAR
13 17. Absent written consent from the designating Party, any individual who
14 receives and accesses Defendants’ “HIGHLY CONFIDENTIAL – ATTORNEYS'
15 EYES ONLY” information that includes non-public technical information shall not
16 participate in: (i) the acquisition of patents or patent applications (for any person or
17 entity) relating to coronary stents; or (ii) advising or counseling clients regarding the
18 same. This Acquisition Bar shall not prohibit counsel from advising clients on other
19 legal matters involving patents, including validity and settlement negotiations. This
20 Acquisition Bar shall begin when “HIGHLY CONFIDENTIAL – ATTORNEYS'
21 EYES ONLY” information designated by Defendants that that includes non-public
22 technical information is first received and accessed by the affected individual and shall
23 end two (2) years after final disposition of this Action as provided herein, or at an
24 earlier date agreed upon in writing by the parties. For the avoidance of doubt, this
25 Acquisition Bar is not triggered by financial information relating to Defendants'
26 coronary stents that is selected based on non-public technical information regarding
27 Defendants' coronary stents, but does not itself disclose any such technical
1 information.
2 IX. INADVERTENT DISCLOSURES
3 18. Inadvertent disclosures by the producing party of Confidential
4 Information, regardless of whether the material was so designated at the time of
5 disclosure, shall not be deemed a waiver in whole or in part of a party's claim of
6 confidentiality, either as to the specific information disclosed or as to any other
7 information relating to the same or related subject matter, provided that the producing
8 party shall promptly upon discovery of the inadvertent disclosure notify the receiving
9 party in writing that the information is Confidential Information and was inadvertently
10 disclosed. Such notification shall constitute a designation of the information as
11 Confidential Information. Upon such notification, counsel shall reasonably cooperate
12 to restore the confidentiality of the Confidential Information to the extent possible.
13 Upon subsequent correction of a designation, the receiving party must make
14 reasonable efforts to assure that the material is treated in accordance with any revised
15 designations under the provisions of this Order and promptly collect any copies of the
16 material that have been provided to individuals other than those authorized under
17 paragraph 5 of this Order. The designating party may also request the individuals to
18 execute the Declaration (Exhibit A).
19 19. Should any Confidential Information be disclosed, through inadvertence
20 or otherwise, by a receiving party to any person not duly authorized to receive such
21 information under this Protective Order, the receiving party must immediately (a)
22 notify in writing the designating party of the unauthorized disclosures, (b) use its best
23 efforts to retrieve all unauthorized copies of the Confidential Information, (c) inform
24 the person or persons to whom unauthorized disclosures were made of all the terms of
25 this Order, and (d) request such person or persons to execute the Declaration
26 (Exhibit A).
27 20. The production of material protected by the attorney-client privilege or
1 the work product doctrine or any other applicable privilege (“Privileged Material”),
2 whether inadvertent or otherwise, is not a waiver of the privilege or protection from
3 discovery in this Action or in any other federal or state proceeding, provided that the
4 producing party notifies the receiving party in writing promptly upon discovery of
5 such information. Upon such notice by the producing party, the receiving party shall
6 not review the Privileged Material in any respect. Within five (5) business days of
7 receiving such notice, the receiving party shall return such information or documents
8 or confirm in writing that it has taken reasonable steps to permanently delete all
9 electronic copies of such documents from electronic records and to destroy all paper
10 copies. If the receiving party has disclosed the information to others before being
11 notified of the claim of privilege or protection, the receiving party must take
12 reasonable steps to retrieve and return or destroy the disclosed information. No use
13 shall be made of such documents or information during deposition or at trial, nor shall
14 such documents or information be shown to anyone after the request that they be
15 returned. The receiving party may move the Court for an order compelling production
16 of such information (based on information independent of the content of the allegedly
17 privileged materials in question), but the motion shall not assert as a ground for
18 production the fact or circumstances of the inadvertent production. The producing
19 party must preserve any Privileged Material until all disputes regarding the
20 discoverability of the document(s) have been resolved. If a claim is disputed, the
21 receiving party shall not use or disclose a document or information for which a claim
22 of privilege or immunity is made pursuant to this paragraph for any purpose until the
23 matter is resolved by agreement of the parties or by a decision of this Court. Any
24 motion challenging a party’s designation of material as Confidential Information or
25 Privileged Material, seeking to compel Privileged Material, seeking relief in
26 connection with disclosing information to expert witnesses, or seeking to modify or
27 ament the proposed Protective Order must be brought in strict compliance with Local
1 Rules 37-1 and 37-2 (including the Joint Stipulation requirement).
2 21. If a party becomes aware that it has received documents that it reasonably
3 believes may be privileged, the party receiving the privileged documents will
4 promptly notify the producing party of receipt of the documents and return or destroy
5 all copies of the privileged documents, if the producing party so requests within five
6 (5) business days after being advised of the inadvertent production.
7 22. Nothing herein shall prevent the receiving party from challenging the
8 propriety of the attorney-client privilege or work-product immunity or other applicable
9 privilege or immunity designation by submitting a written challenge to the Court. The
10 receiving party may object to the producing party's designation of disclosed
11 information as Privileged Material by providing written notice of such objection
12 within five (5) business days of its receipt of a written demand for the return of the
13 disclosed Privileged Material. Any such objection shall be resolved by the Court after
14 an in camera review of the disclosed Privileged Material. Any motion challenging a
15 party’s designation of material as Confidential Information or Privileged Material,
16 seeking to compel Privileged Material, seeking relief in connection with disclosing
17 information to expert witnesses, or seeking to modify or amend the proposed
18 Protective Order must be brought in strict compliance with Local Rules 37-1 and 37-2
19 (including the Joint Stipulation requirement).
20 X. USE OF CONFIDENTIAL INFORMATION IN COURT FILINGS AND
21 FORMAL PROCEEDINGS
22 23. A Party that seeks to file under seal any Confidential Information must
23 comply with C.D. Cal. Local Civil Rule 79-5. Confidential Information may only be
24 filed under seal pursuant to a Court order authorizing the sealing of the specific
25 Confidential Information. If a Party's request to file Confidential Information under
26 seal is denied by the Court, then the receiving party may file the information in the
27 public record unless otherwise instructed by the Court. The producing party agrees to
1 cooperate with the filing party, and to provide timely information requested by the
2 filing party, to facilitate the preparation of the Application to File Under Seal required
3 by C.D. Cal. Local Civil Rule 79-5.
4 24. The protections afforded to Confidential Information at trial will be
5 determined by the Court upon an application by any party.
6 25. In the event that any Confidential Information is otherwise used in any
7 Court proceeding in connection with this Action, the parties shall take all steps
8 reasonably required to protect its confidentiality during such use.
9 26. Any person who is not authorized under this Protective Order to have
10 access to Confidential Information may be excluded while a deponent is being
11 examined about such Confidential Information.
12 XI. MISCELLANEOUS
13 27. The recipient of any Confidential Information agrees to subject
14 himself/herself to the jurisdiction of this Court for the purpose of any proceedings
15 relating to the performance under, compliance with, or violation of this Protective
16 Order.
17 28. The recipient of any Confidential Information that is provided under this
18 Protective Order shall maintain such information in a secure and safe area and shall
19 exercise the same standard of due and proper care, but no less than a reasonable
20 degree of care, with respect to the storage, custody, use and/or dissemination of such
21 information as is exercised by the recipient with respect to its own proprietary
22 information.
23 29. By entering this Order and limiting the disclosure of certain information
24 in this Action, the Court does not intend to preclude another court from finding that
25 information may be relevant and subject to disclosure in another case. Any person or
26 party subject to this Order who becomes subject to a motion to disclose another party's
27 information designated CONFIDENTIAL or HIGHLY CONFIDENTIAL –
1 ATTORNEYS' EYES ONLY INFORMATION pursuant to this Protective Order shall
2 promptly notify that party of the motion so that the party may have an opportunity to
3 appear and be heard on whether that information should be disclosed. Nothing in this
4 Protective Order shall be construed as authorizing a party to disobey a lawful
5 subpoena or court order in another action.
6 30. The restrictions provided for herein shall not terminate upon the
7 conclusion of this Action but shall continue until further order of this Court, provided
8 that this Protective Order shall not be construed to: (a) prevent any party or its counsel
9 from making use of information that was lawfully in its possession prior to its
10 disclosure by the producing party; (b) apply to information that appears in issued
11 patents or printed publications or otherwise becomes publicly known without fault of
12 any party; or (c) apply to information that any party or its counsel has, since disclosure
13 by the producing party, lawfully obtained from a third party having the right to
14 disclose such information.
15 31. Nothing in this Protective Order shall preclude any party to this Action or
16 their attorneys from: (a) showing a document designated as Confidential Information
17 to an individual who either prepared or reviewed the document prior to the filing of
18 this Action; or (b) disclosing or using, in any manner or for any purpose, any
19 information or documents from the party's own files which the party itself has
20 designated as Confidential Information. Additionally, Confidential Information may
21 be disclosed to a witness at a deposition or in court proceedings if: (a) the witness is an
22 officer, director, or employee of the party that produced such Confidential
23 Information; or (b) the witness is an expert.
24 32. Nothing in this Protective Order shall bar or otherwise restrict any
25 counsel from providing legal advice to his or her client solely with respect to this
26 Action and, in the course thereof, relying upon his or her examination of Confidential
27 Information, provided that, in providing such advice and in otherwise communicating
1 with his or her client, such person shall not make any disclosure of Confidential
2 Information or information derived therefrom to any person not entitled to have access
3 to it.
4 33. Nothing in this Protective Order shall prejudice the right of any party to
5 oppose production of any information for lack of relevance, privilege, or any ground
6 other than confidentiality.
7 34. In the event that a party seeks discovery from a non-party to this Action,
8 the non-party may invoke the terms of this Protective Order by advising all parties to
9 this Action in writing.
10 a. The terms of this Order are applicable to information produced by a
11 non-party in this Action and designated as Confidential Information.
12 Such information produced by non-parties in connection with this
13 litigation is protected by the remedies and relief provided by this
14 Order. Nothing in these provisions should be construed as
15 prohibiting a non-party from seeking additional protections.
16 b. Both parties shall be treated as a receiving party with respect to any
17 information produced by a non-party in this Action. To the extent
18 that a party obtains information from a non-party via subpoena or
19 otherwise, the party shall produce the information to the other party
20 within 5 business days, unless the party can demonstrate good reason
21 why it is not possible to do so.
22 c. In the event that a party is required, by a valid discovery request, to
23 produce a non-party's Confidential Information in its possession
24 (other than information produced in this litigation by a non-party),
25 and the party is subject to an agreement with the non-party not to
26 produce the non-party's Confidential Information, then the party
27 shall:
1 i. promptly notify in writing the requesting party and the non-party
2 that some or all of the information requested is subject to a
3 confidentiality agreement with a non-party;
4 ii. promptly provide the non-party with a copy of the Protective
5 Order in this litigation, the relevant discovery request(s), and a
6 reasonably specific description of the information requested; and
7 iii. make the information requested available for inspection by the
8 non-party.
9 d. If the non-party fails to object or seek a protective order from the
10 Court within fourteen (14) days of receiving the notice and
11 accompanying information, the receiving party may produce the non-
12 party's confidential information responsive to the discovery request.
13 If the non-party timely seeks a protective order, the receiving party
14 shall not produce any information in its possession or control that is
15 subject to the confidentiality agreement with the non-party before a
16 determination by the Court. Absent a Court order to the contrary, the
17 non-party shall bear the burden and expense of seeking protection in
18 this Court of its Confidential Information.
19 35. Within thirty (30) days of the final termination of this Action (including
20 any appeals), all Confidential Information, all documents describing or summarizing
21 any Confidential Information, and all copies thereof (including without limitation
22 electronic records of documents or information, document coding databases, and other
23 database information), shall, at the election of the receiving party, be returned to the
24 party that produced the same or destroyed. If a receiving party elects to destroy
25 Confidential Information and all copies and summaries thereof, the party shall certify
26 in writing that destruction has taken place within the thirty (30) day time period.
27 Notwithstanding the foregoing, outside counsel may retain an archival copy of any
1 materials filed with the Court, correspondence, deposition transcripts, and/or attorney
2 work product which contains Confidential Information. Such archival documents
3 shall be retained and treated in accordance with this Protective Order.
4 36. This Protective Order is without prejudice to the right of any party to seek
5 relief from the Court from any of its provisions, or to bring before the Court at any
6 time the question of whether any greater or lesser restrictions should be placed upon
7 the disclosure of Confidential Information. Any motion challenging a party’s
8 designation of material as Confidential Information or Privileged Material, seeking to
9 compel Privileged Material, seeking relief in connection with disclosing information
10 to expert witnesses, or seeking to modify or amend the proposed Protective Order
11 must be brought in strict compliance with Local Rules 37-1 and 37-2 (including the
12 Joint Stipulation requirement).
13 37. By stipulating to the entry of this Protective Order, no party waives any
14 right it otherwise would have to object to disclosing or producing any information or
15 item on any ground not addressed in this Protective Order. Similarly, no party waives
16 any right to object on any ground to the use in evidence of any of the material covered
17 by this Protective Order.
18 38. This Protective Order may be amended as need may arise by written
19 agreement of the parties, subject to Court approval.
20
21 Respectfully submitted,
22 Dated: August 16, 2019
23
24 DOVEL & LUNER, LLP
25
26 By: /s/ Simon Franzini
27
Gregory S. Dovel (Cal. Bar No. 135387)
1
greg@dovel.com
2 Simon Franzini (Cal. Bar No. 287631)
simon@dovel.com
3
DOVEL & LUNER, LLP
4 201 Santa Monica Blvd., Suite 600
Santa Monica, California 90401
5
Telephone: (310) 656-7066
6 Facsimile: (310) 656-7069
Attorneys for Plaintiff FlexStent, LLC
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Dated: August 16, 2019 Respectfully submitted,
11
LATHAM & WATKINS LLP
12
13
By: /s/ Giri Pathmanaban
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1 LATHAM & WATKINS LLP
Thomas W. Yeh (CA Bar No. 287118)
2 thomas.yeh@lw.com
355 South Grand Avenue, Suite 100
3 Los Angeles, CA 90071
Tel: (213) 485-1234
4 Fax: (213) 891-8763
5 Michael A. Morin (pro hac vice)
michael.morin@lw.com
6 555 Eleventh Street, NW, Suite 1000
Washington, D.C. 20004
7 Tel: (202) 637-2200
3 Fax: (202) 637-2201
S. Giri Pathmanaban (CA Bar No.
9 284802)
iri.pathmanaban @lw.com
10 140 Scott Drive
Menlo Park, CA 94025
11 Tel: (650) 328-4600
Fax: (650) 463-2600
Allison Harms (CA Bar No. 299214)
13 allison.harms @lw.com
Blake R. Davis (CA Bar No. 294360)
14 blake.davis@lw.com
505 Montgomery Street, Suite 2000
15 San Francisco, CA 94111
Tel: (415) 391-0600
16 Fax: (415) 395-8095
17 Attorneys for Defendants
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19
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
21 Wa
9 DATED: August 16, 2019 __ | □□
Hon. Kenly Kiyg Kato
23 United States Magistrate Judge
24
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OA
1 UNITED STATES DISTRICT COURT
2 CENTRAL DISTRICT OF CALIFORNIA
3
4 FLEXSTENT, LLC No. 5:18-cv-02479-RGK-KK
5 Plaintiff,
6 v.
7 ABBOTT LABORATORIES, et al.
8 Defendants.
9
EXHIBIT A
10 UNDERTAKING REGARDING
PROTECTIVE ORDER
11
12 I, __________________________________________________, declare that:
13
1. My address is
14
___________________________________________________________.
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16 My current employer is
17
___________________________________________________.
18
My current occupation is
19
20 __________________________________________________.
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2. I have received a copy of the Protective Order in this Action. I have carefully
22
23 read and understand the provisions of the Protective Order.
24 3. I will comply with all of the provisions of the Protective Order. I will hold in
25
confidence, will not disclose to anyone not qualified under the Protective Order,
26
27 and will use only for purposes of this Action any information designated as
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –ATTORNEYS' EYES
1
2 ONLY,” that is disclosed to me.
3
4. Promptly upon termination of this Action, I will return all documents and things
4
designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –
5
6 ATTORNEYS' EYES ONLY,” that came into my possession, and all
7
documents and things that I have prepared relating thereto, to the outside
8
counsel for the Party by whom I am employed.
9
10 5. I hereby submit to the jurisdiction of this Court for the purpose of enforcement
11
of the Protective Order in this Action.
12
13
14 I declare under penalty of perjury that the foregoing is true and correct.
15
Signature __________________________________________________________
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Date____________________________________________
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