The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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6 JULIAN FISHER as brought through his Case No. 2:22-cv-05133-SB (ASx)
Conservator Jinna Miller
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Plaintiff,
8 PROTECTIVE ORDER
v.
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ABBOTT LABORATORIES and
10 ABBVIE INC.
11 Defendants.
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1. A. PURPOSES AND LIMITATIONS
13
14 Discovery in this action is likely to involve production of confidential,
15 proprietary, or private information for which special protection from public
16 disclosure and from use for any purpose other than prosecuting this litigation may
17 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
18 enter the following Stipulated Protective Order. The parties acknowledge that this
19 Order does not confer blanket protections on all disclosures or responses to
20 discovery and that the protection it affords from public disclosure and use extends
21 only to the limited information or items that are entitled to confidential treatment
22 under the applicable legal principles. The parties further acknowledge, as set forth
23 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
24 file confidential information under seal; Civil Local Rule 79-5 sets forth the
25 procedures that must be followed and the standards that will be applied when a party
26 seeks permission from the court to file material under seal.
27
1 B. GOOD CAUSE STATEMENT
2 This action is likely to involve the production of “Confidential Information”
3 for which special protection from public disclosure and from use for any purpose
4 other than prosecution of this action is warranted. Confidential Information is
5 defined herein to include information that is not in the public domain and contains
6 employee information, financial data and information, and any other information
7 that may reasonably be characterized by a party as intellectual property, a trade
8 secret, or confidential and proprietary information, including information protected
9 from disclosure by FDA regulations including 21 C.F.R.§ 20.63 and 21 C.F.R. §
10 314.430; information provided to Defendants Abbott Laboratories and AbbVie Inc.
11 (collectively, “Defendants”) by third parties with the expectation that Defendants
12 would keep such information confidential or pursuant to contracts that expressly
13 require Defendants to maintain the confidentiality of the information or that is
14 otherwise protected from disclosure by statute; names and other identifying
15 information of patients in clinical studies or adverse event reports as well as the
16 physicians who reported to Defendants adverse events concerning one of their
17 patients; confidential client lists; information that is not generally available to the
18 public that relates to, reflects or was or is used to help form Defendants’ research,
19 business and legal strategies, such as information that is not generally available to
20 the public that relates to, reflects or was or is used to help form Defendants’ research,
21 business and legal strategies, such as business or marketing plans or studies; sales
22 data that is kept confidential; pricing and financial information; discount
23 information; rebate information; plaintiff medical records and personal financial
24 information; non-public financial data that would reveal Defendants’ future strategic
25 commitments; information relating to job performance evaluations or disciplinary
26 actions; information that is not generally available to the public that relates to
27 consumer purchasing habits, pricing information, sales techniques, sales volumes;
1 and information concerning communication with government agencies. For
2 purposes of discovery, “trade secret” shall include any formula, compilation,
3 program, plan, device, design, method, technique, process or other information used
4 in the Producing Party’s business and for which confidentiality or sensitivity has
5 been reasonably maintained; and “proprietary” information shall mean any
6 information in which a party has a protectable interest, including information
7 regarding a party’s finances, processes, products, services, research and
8 development, sales and marketing, strategies and technologies, trade secret or other
9 confidential research, development or commercial information or other non-public
10 information about the financial and business affairs of the parties.
11 2. DEFINITIONS
12 2.1 Action: JULIAN FISHER as brought through his Conservator JINNA
13 MILLER v. ABBOTT LABORATORIES, et al., No. 2:22-cv-05133-SB
14 (ASx)
15 2.2 Challenging Party: a Party or Non-Party that challenges the designation
16 of information or items under this Order.
17 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
18 how it is generated, stored or maintained) or tangible things that qualify
19 for protection under Federal Rule of Civil Procedure 26(c), and as
20 specified above in the Good Cause Statement.
21 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
22 their support staff).
23 2.5 Designating Party: a Party or Non-Party that designates information or
24 items that it produces in disclosures or in responses to discovery as
25 “CONFIDENTIAL.”
26 2.6 Disclosure or Discovery Material: all items or information, regardless
27 of the medium or manner in which it is generated, stored, or maintained
1 (including, among other things, testimony, transcripts, and tangible
2 things), that are produced or generated in disclosures or responses to
3 discovery in this matter.
4 2.7 Expert: a person with specialized knowledge or experience in a matter
5 pertinent to the litigation who has been retained by a Party or its
6 counsel to serve as an expert witness or as a consultant in this Action.
7 2.8 House Counsel: attorneys who are employees of a party to this Action.
8 House Counsel does not include Outside Counsel of Record or any
9 other outside counsel.
10 2.9 Non-Party: any natural person, partnership, corporation, association, or
11 other legal entity not named as a Party to this action.
12 2.10 Outside Counsel of Record: attorneys who are not employees of a party
13 to this Action but are retained to represent or advise a party to this
14 Action and have appeared in this Action on behalf of that party or are
15 affiliated with a law firm which has appeared on behalf of that party,
16 and includes support staff.
17 2.11 Party: any party to this Action, including all of its officers, directors,
18 employees, consultants, retained experts, and Outside Counsel of
19 Record (and their support staffs).
20 2.12 Privileged Information: any materials that contain information
21 protected from disclosure as defined by the Federal Rules of Civil
22 Procedure and/or the Federal Rules of Evidence.
23 2.13 Producing Party: a Party or Non-Party that produces Disclosure or
24 Discovery Material in this Action.
25 2.14 Professional Vendors: persons or entities that provide litigation support
26 services (e.g., photocopying, videotaping, translating, preparing
27 exhibits or demonstrations, and organizing, storing, or retrieving data
1 in any form or medium) and their employees and subcontractors.
2 2.15 Protected Material: any Disclosure or Discovery Material that is
3 designated as “CONFIDENTIAL.”
4 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
5 from a Producing Party.
6
7 3. SCOPE
8 The protections conferred by this Stipulation and Order cover not only
9 Protected Material (as defined above), but also (1) any information copied or
10 extracted from Protected Material; (2) all copies, excerpts, summaries, or
11 compilations of Protected Material; and (3) any testimony, conversations, or
12 presentations by Parties or their Counsel that might reveal Protected Material.
13 Any use of Protected Material at trial shall be governed by the orders of the
14 trial judge. This Order does not govern the use of Protected Material at trial.
15
16 4. DURATION
17 Even after final disposition of this litigation, the confidentiality obligations
18 imposed by this Order shall remain in effect until a Designating Party agrees
19 otherwise in writing or a court order otherwise directs. Final disposition shall be
20 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
21 or without prejudice; and (2) final judgment herein after the completion and
22 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
23 including the time limits for filing any motions or applications for extension of time
24 pursuant to applicable law.
25
26 5. DESIGNATING PROTECTED MATERIAL
27 5.1 Exercise of Restraint and Care in Designating Material for Protection.
1 Each Party or Non-Party that designates information or items for protection under
2 this Order must take care to limit any such designation to specific material that
3 qualifies under the appropriate standards. The Designating Party must designate for
4 protection only those parts of material, documents, items, or oral or written
5 communications that qualify so that other portions of the material, documents, items,
6 or communications for which protection is not warranted are not swept unjustifiably
7 within the ambit of this Order.1
8 Mass, indiscriminate, or routinized designations are prohibited. Designations
9 that are shown to be clearly unjustified or that have been made for an improper
10 purpose (e.g., to unnecessarily encumber the case development process or to impose
11 unnecessary expenses and burdens on other parties) may expose the Designating
12 Party to sanctions.
13 If it comes to a Designating Party’s attention that information or items that it
14 designated for protection do not qualify for protection, that Designating Party must
15 promptly notify all other Parties that it is withdrawing the inapplicable designation.
16
17 5.2 Manner and Timing of Designations. Except as otherwise provided in
18 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
19 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
20 under this Order must be clearly so designated before the material is disclosed or
21
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1 The parties have stipulated and agreed to maintain the confidentiality designations
23 made in prior litigations involving the same product and similarly alleged injuries to
facilitate the efficient and expeditious exchange of discovery material. The
24
protective order entered in the lead consolidated case for prior Depakote litigation,
25 In re Depakote: Rhealyn Alexander, et al., v. Abbott Lab’ys, Inc., No: 3:12-cv-00052
S.D. Ill.), is appended to this Motion for a Protective Order as Exhibit A. The parties
26
have made changes to the instant template only where necessary to align with that
27 protective order, which governs the documents previously produced that Defendants
plan to reproduce here.
1 produced.
2 Designation in conformity with this Order requires:
3 (a) for information in documentary form (e.g., paper or electronic
4 documents, but excluding transcripts of depositions or other pretrial or
5 trial proceedings), that the Producing Party affix at a minimum, the
6 legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”),
7 to each page that contains protected material. If only a portion or
8 portions of the material on a page qualifies for protection, the Producing
9 Party also must clearly identify the protected portion(s) (e.g., by making
10 appropriate markings in the margins). Prior productions that
11 Defendants replicate in this case shall maintain the designations made
12 at the time of production in prior litigations.
13 A Party or Non-Party that makes original documents available
14 for inspection need not designate them for protection until after the
15 inspecting Party has indicated which documents it would like copied
16 and produced. During the inspection and before the designation, all of
17 the material made available for inspection shall be deemed
18 “CONFIDENTIAL.” After the inspecting Party has identified the
19 documents it wants copied and produced, the Producing Party must
20 determine which documents, or portions thereof, qualify for protection
21 under this Order. Then, before producing the specified documents, the
22 Producing Party must affix the “CONFIDENTIAL legend” to each
23 page that contains Protected Material. If only a portion or portions of
24 the material on a page qualifies for protection, the Producing Party also
25 must clearly identify the protected portion(s) (e.g., by making
26 appropriate markings in the margins). Prior productions that
27 Defendants replicate in this case shall maintain the designations made
1 at the time of production in prior litigations.
2 (b) All testimony and exhibits provided at the depositions in this Action
3 initially shall be considered “Confidential” and the court reporter shall
4 mark all pages of deposition transcripts with the designation
5 “Confidential - Subject to Further Confidentiality Review.” In order to
6 maintain the “Confidential” status of such testimony (including
7 exhibits), the Designating Party must notify all other parties and the
8 court reporter in writing of the specific pages and lines of the transcript
9 that should be treated as Confidential within thirty (30) days of receipt
10 of the final transcript. Only the exhibits and those portions of the
11 transcript so designated within that thirty (30) day period shall be
12 deemed Confidential. Counsel for the opposing party may have
13 immediate access to the deposition transcript, but prior to the page and
14 line designations, shall treat the entire transcript as Confidential.
15 (c) for information produced in some form other than documentary and for
16 any other tangible items, that the Producing Party affix in a prominent
17 place on the exterior of the container or containers in which the
18 information is stored the legend “CONFIDENTIAL.” If only a portion
19 or portions of the information warrants protection, the Producing Party,
20 to the extent practicable, shall identify the protected portion(s). Prior
21 productions that Defendants replicate in this case shall maintain the
22 designations made at the time of production in prior litigations.
23
24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
25 failure to designate qualified information or items does not, standing alone, waive
26 the Designating Party’s right to secure protection under this Order for such material.
27 Upon timely correction of a designation, the Receiving Party must make reasonable
1 efforts to assure that the material is treated in accordance with the provisions of this
2 Order.
3
4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
6 designation of confidentiality at any time that is consistent with the Court’s
7 Scheduling Order.
8 6.2 Meet and Confer. The Challenging Party shall initiate the informal
9 dispute resolution process set forth in the Court's Procedures and Schedules. See
10 http://www.cacd.uscourts.gov/honorable-alka-sagar
11 6.3 The burden of persuasion in any such challenge proceeding shall be on
12 the Designating Party. Frivolous challenges, and those made for an improper
13 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
14 parties) may expose the Challenging Party to sanctions. Unless the Designating Party
15 has waived or withdrawn the confidentiality designation, all parties shall continue to
16 afford the material in question the level of protection to which it is entitled under the
17 Producing Party’s designation until the Court rules on the challenge.
18
19 7. ACCESS TO AND USE OF PROTECTED MATERIAL
20 7.1 Basic Principles. A Receiving Party may use Protected Material that is
21 disclosed or produced by another Party or by a Non-Party in connection with this
22 Action only for prosecuting, defending, or attempting to settle this Action. Such
23 Protected Material may be disclosed only to the categories of persons and under the
24 conditions described in this Order. When the Action has been terminated, a
25 Receiving Party must comply with the provisions of section 13 below (FINAL
26 DISPOSITION).
27 Protected Material must be stored and maintained by a Receiving Party at a
1 location and in a secure manner that ensures that access is limited to the persons
2 authorized under this Order.
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4 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
5 ordered by the court or permitted in writing by the Designating Party, a Receiving
6 Party may disclose any information or item designated “CONFIDENTIAL” only to:
7 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
8 employees of said Outside Counsel of Record to whom it is reasonably necessary to
9 disclose the information for this Action;
10 (b) the officers, directors, and employees (including House Counsel) of the
11 Receiving Party to whom disclosure is reasonably necessary for this Action;
12 (c) Experts (as defined in this Order) or consultants of the Receiving Party,
13 including the partners, associates, and stenographic, secretarial, paralegal, clerical,
14 and other employees of such expert or consultant, to whom disclosure is reasonably
15 necessary for this Action and who have signed the “Acknowledgment and
16 Agreement to Be Bound” (Exhibit B);
17 (d) the court and its personnel;
18 (e) court reporters and their staff, to whom disclosure is reasonably necessary
19 for this Action and who have signed the “Acknowledgment and Agreement to Be
20 Bound” (Exhibit B);
21 (f) professional jury or trial consultants, mock jurors, and Professional
22 Vendors to whom disclosure is reasonably necessary for this Action and who have
23 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit B);
24 (g) the author or recipient of a document containing the information or a
25 custodian or other person who otherwise possessed or knew the information;
26 (h) during their depositions, witnesses, and attorneys for witnesses, in the
27 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
1 requests that the witness sign the form attached as Exhibit B hereto; and (2) they will
2 not be permitted to keep any confidential information unless they sign the
3 “Acknowledgment and Agreement to Be Bound” (Exhibit B), unless otherwise
4 agreed by the Designating Party or ordered by the court. Pages of transcribed
5 deposition testimony or exhibits to depositions that reveal Protected Material may
6 be separately bound by the court reporter and may not be disclosed to anyone except
7 as permitted under this Stipulated Protective Order; and
8 (i) any mediator or settlement officer, and their supporting personnel,
9 mutually agreed upon by any of the parties engaged in settlement discussions, to
10 whom disclosure is reasonably necessary for this Action and who have signed the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit B).
12 Any person listed who receives materials containing Confidential Information
13 shall:
14 (a) be advised of this Order;
15 (b)be directed to use such Confidential Information only for purposes in
16 connection with this Action, and not for any other purpose; and
17 (c) be directed to refrain from disclosing or discussing such Confidential
18 Information with any person other than those already subject to the terms
19 of this Order.
20 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
21 OTHER LITIGATION
22 If a Party is served with a subpoena or a court order issued in other litigation
23 that compels disclosure of any information or items designated in this Action as
24 “CONFIDENTIAL,” that Party must:
25 (a) promptly notify in writing the Designating Party, and in no event more
26 than five (5) court days after receiving the subpoena or court order. Such notification
27 shall include a copy of the subpoena or court order;
1 (b) promptly notify in writing the party who caused the subpoena or order to
2 issue in the other litigation that some or all of the material covered by the subpoena
3 or order is subject to this Protective Order. Such notification shall include a copy of
4 this Stipulated Protective Order; and
5 (c) cooperate with respect to all reasonable procedures sought to be pursued
6 by the Designating Party whose Protected Material may be affected.
7 If the Designating Party timely seeks a protective order and/or moves to quash
8 the subpoena, the Party served with the subpoena or court order shall not produce
9 any information designated in this action as “CONFIDENTIAL” before a
10 determination by the court from which the subpoena or order issued, unless the Party
11 has obtained the Designating Party’s written permission. The Designating Party shall
12 bear the burden and expense of seeking protection in that court of its confidential
13 material and nothing in these provisions should be construed as authorizing or
14 encouraging a Receiving Party in this Action to disobey a lawful directive from
15 another court.
16
17 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
18 PRODUCED IN THIS LITIGATION
19 (a) The terms of this Order are applicable to information produced by a Non-
20 Party in this Action and designated as “CONFIDENTIAL.” Such information
21 produced by Non-Parties in connection with this litigation is protected by the
22 remedies and relief provided by this Order. Nothing in these provisions should be
23 construed as prohibiting a Non-Party from seeking additional protections.
24 (b) In the event that a Party is required, by a valid discovery request, to
25 produce a Non-Party’s confidential information in its possession, and the Party is
26 subject to an agreement with the Non-Party not to produce the Non-Party’s
27 confidential information, then the Party shall:
1 (1) promptly notify in writing the Requesting Party and the Non-Party that
2 some or all of the information requested is subject to a confidentiality agreement
3 with a Non-Party;
4 (2) promptly provide the Non-Party with a copy of the Stipulated
5 Protective Order in this Action, the relevant discovery request(s), and a reasonably
6 specific description of the information requested; and
7 (3) make the information requested available for inspection by the Non-
8 Party, if requested.
9 (c) If the Non-Party fails to seek a protective order from this court within 14
10 days of receiving the notice and accompanying information, the Receiving Party
11 may produce the Non-Party’s confidential information responsive to the discovery
12 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
13 not produce any information in its possession or control that is subject to the
14 confidentiality agreement with the Non-Party before a determination by the court.
15 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
16 of seeking protection in this court of its Protected Material.
17
18 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
19 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
20 Protected Material to any person or in any circumstance not authorized under this
21 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
22 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
23 to retrieve all unauthorized copies of the Protected Material, (c) inform the person
24 or persons to whom unauthorized disclosures were made of all the terms of this
25 Order, and (d) request such person or persons to execute the “Acknowledgment and
26 Agreement to Be Bound” that is attached hereto as Exhibit B.
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1 11. PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
2 11.1 Withholding Privileged Material
3 In the event that any responsive documents or material are withheld from
4 production on the basis that such material contains or includes Privileged
5 information, the party withholding production of such documents shall provide a
6 Privilege Log on a rolling basis, updated at regular and reasonable intervals, which
7 shall state with respect to each responsive document being withheld or redacted on
8 the basis that it contains Privileged materials the following information: (1) the date
9 of the document; (2) the author of the document; (3) the recipients of the document;
10 (4) the specific privilege being invoked; and (5) a description of the document
11 necessary to establish the existence of the privilege invoked. Information qualifying
12 as attorney work product under federal law are exempt from the requirements of this
13 paragraph.
14 When a Producing Party gives notice to Receiving Parties that certain
15 inadvertently produced material is subject to a claim of privilege or other protection,
16 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
17 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
18 may be established in an e-discovery order that provides for production without prior
19 privilege review.
20 11.2 Partially Privileged Information
21 Parties withholding information on the basis of a privilege are required to
22 redact privileged information from documents also containing non-privileged
23 information and to produce the redacted document. A party cannot refuse to produce
24 an entire document on the basis that the document contains both privileged and non-
25 privileged information.
26 11.3 Challenging Privileged Designation
27 If there is a challenge to a “Privileged” designation and the parties are unable
1 in good faith to agree on whether the designation should remain, the party
2 challenging the designation may move the Court to have the producing, responding
3 or withholding party, as the case may be, make a witness available for a deposition
4 limited to an inquiry concerning the “Privileged” designation of any so-designated
5 materials.
6 11.4 Inadvertent Production of Privileged Materials
7 The inadvertent production of materials subject to a claim of privilege, work
8 product, or other statutory or Court-ordered confidentiality shall not result in a
9 waiver of any of the foregoing protections for the materials, or for any other
10 privileged or immune materials containing the same or similar subject matter. An
11 inadvertent production by a party in this Action shall not be used as a basis for
12 arguing that a claim of privilege, work product, or other statutory or Court-ordered
13 confidentiality has been waived in any other proceeding. If any party inadvertently
14 produces such materials, upon receipt of notice of such disclosure, the receiving
15 party shall promptly return or delete from its litigation support or other database(s)
16 such materials; return or destroy its other copies, if any, of such materials; destroy
17 its notes or other work product reflecting the contents of such materials; and confirm
18 in writing to the producing party that all copies of the recalled materials have been
19 returned or destroyed in accordance with this Order. If the receiving party seeks to
20 challenge the disclosing party’s claim that the materials are privileged, protected, or
21 otherwise subject to recall, it shall present the materials in dispute to the Court under
22 seal for a determination.
23
24 12. MISCELLANEOUS
25 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
26 person to seek its modification by the Court in the future.
27 12.2 Right to Assert Other Objections. By stipulating to the entry of this
1 Protective Order no Party waives any right it otherwise would have to object to
2 disclosing or producing any information or item on any ground not addressed in this
3 Stipulated Protective Order. Similarly, no Party waives any right to object on any
4 ground to use in evidence of any of the material covered by this Protective Order.
5 12.3 Filing Protected Material. A Party that seeks to file under seal any
6 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
7 only be filed under seal pursuant to a court order authorizing the sealing of the
8 specific Protected Material at issue. If a Party's request to file Protected Material
9 under seal is denied by the court, then the Receiving Party may file the information
10 in the public record unless otherwise instructed by the court.
11 12.4 Retaining Jurisdiction. This Court shall retain jurisdiction even after
12 the termination of this Action to enforce the terms of this Order and to make such
13 amendments, modifications, deletions and additions as the Court deems necessary
14 and appropriate.
15
16 13. FINAL DISPOSITION
17 After the final disposition of this Action, as defined in paragraph 4, within 60
18 days of the final disposition, each Receiving Party must return all Protected Material
19 to the Producing Party or destroy such material. As used in this subdivision, “all
20 Protected Material” includes all copies, abstracts, compilations, summaries, and any
21 other format reproducing or capturing any of the Protected Material. Whether the
22 Protected Material is returned or destroyed, the Receiving Party must submit a
23 written certification to the Producing Party (and, if not the same person or entity, to
24 the Designating Party) by the 60 day deadline that (1) identifies (by category, where
25 appropriate) all the Protected Material that was returned or destroyed and (2)affirms
26 that the Receiving Party has not retained any copies, abstracts, compilations,
27 summaries or any other format reproducing or capturing any of the Protected
1 Material. Notwithstanding this provision, Counsel are entitled to retain an archival
2 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
3 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
4 work product, and consultant and expert work product, even if such materials
5 contain Protected Material. Any such archival copies that contain or constitute
6 Protected Material remain subject to this Protective Order as set forth in Section 4
7 (DURATION).
8
9 14.Any violation of this Order may be punished by any and all appropriate measures
10 including, without limitation, contempt proceedings and/or monetary sanctions.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED March 31, 2023
14
15 /s/ Mark T. B. Patterson
16 Attorneys for Plaintiff
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18 DATED: March 31, 2023
19
/s/ Shannon E. Beamer
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Attorneys for Defendant
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
23
24 DATED: April 3, 2023
25
26 / s / Sagar
27 Honorable Alka Sagar
United States Magistrate Judge
1 SIGNATURE CERTIFICATION
2
Pursuant to Local Rule 5-4.3.4(a)(2)(i), I hereby certify that Mark Patterson
3
with Morgan & Morgan, P.A., counsel for Plaintiff, Julian D. Fisher, concur in the
4
content of this filing and have authorized this filing.
5
6 Dated: March 31, 2023 VENABLE LLP
7 /s/ Shannon Beamer
8 By: Shannon E. Beamer
Jamar S. Mancano
9
Attorneys for Defendants
10 ABBOTT LABORATORIES and
11 ABBVIE, INC.
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EXHIBIT
A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE: )
)
RHEALYN ALEXANDER, et al., )
)
Plaintiffs, ) CIVIL NO. 12-52-GPM
)
vs. ) LEAD CONSOLIDATED CASE
)
ABBOTT LABORATORIES INC. )
)
Defendant. )
PROTECTIVE ORDER
WHEREAS, the discovery phase of this case will involve the exchange of confidential
business information and information involving the privacy rights of individuals, including the
parties;
WHEREAS, the Court wishes to expedite the free flow of information between the
parties, facilitate the prompt resolution of disputes over confidentiality, protect the parties from
undue burden and expense, and ensure that protection is afforded only to material so entitled, IT
IS ORDERED as follows:
1. This Protective Order shall govern the use and dissemination of all information,
documents or materials that are produced in the above-captioned case, all cases currently
consolidated into the above-captioned case, any future Depakote cases consolidated into the
above-captioned case, and any cases assigned from this consolidated case to a Magistrate Judge
for future proceedings1 (“the Action”) and designated as Confidential during the discovery phase
1 This category includes, but is not limited to, Cause No. 3:13-cv-00324, B.P. v. Abbott Laboratories, Inc.;
Cause No. 3:13-cv-00325, H.C. v. Abbott Laboratories, Inc.; and Cause No. 3:13-cv-00326, J.B. v. Abbott
of this litigation.
2. In the event that any documents, interrogatory answers, responses to requests for
admission, testimony, or other information or materials produced during the course of discovery
of the Action are designated as being "Confidential" in accordance with this Order ("Confidential
Information"), the Confidential Information produced shall be maintained in confidence and not
disclosed to any person (including representatives and employees of the producing or receiving
party) except as provided herein and shall be subject to the provisions of this Order.
3. The term “Confidential Information,” as used in this Protective Order, is defined in
accordance with and follows Seventh Circuit law. Confidential information is defined herein to
include information that is not in the public domain and contains employee information, financial
data and information, and any other information that may reasonably be characterized by a party
as intellectual property, a trade secret, or confidential and proprietary information, including
information protected from disclosure by FDA regulations including 21 C.F.R.§ 20.63 and 21
C.F.R. § 314.430; information provided to Abbott by third parties with the expectation that
Abbott would keep such information confidential or pursuant to contracts that expressly require
Abbott to maintain the confidentiality of the information or that is otherwise protected from
disclosure by statute; names and other identifying information of patients in clinical studies or
adverse event reports as well as the physicians who reported to Abbott adverse events concerning
one of their patients; confidential client lists; information that is not generally available to the
public that relates to, reflects or was or is used to help form Abbott’s research, business and legal
strategies, such as information that is not generally available to the public that relates to, reflects
or was or is used to help form Abbott’s research, business and legal strategies, such as business
Laboratories, Inc.
or marketing plans or studies; sales data that is kept confidential; pricing and financial
information; discount information; rebate information; plaintiffs’ medical records and personal
financial information; non-public financial data that would reveal Abbott’s future strategic
commitments; information relating to job performance evaluations or disciplinary actions;
information that is not generally available to the public that relates to consumer purchasing
habits, pricing information, sales techniques, sales volumes; and information concerning
communication with government agencies. For purposes of discovery, “trade secret” shall
include any formula, compilation, program, plan, device, design, method, technique, process or
other information used in the Producing Party’s business and for which confidentiality or
sensitivity has been reasonably maintained; and “proprietary” information shall mean any
information in which a party has a protectable interest, including information regarding a party’s
finances, processes, products, services, research and development, sales and marketing, strategies
and technologies. trade secret or other confidential research, development or commercial
information or other non-public information about the financial and business affairs of the
parties.
4. Any party to this Action or other person or entity, including any third party, who
produces or supplies information, documents or other materials used in the Action (hereinafeter
the “Producing Party” or “Designating Party”) may designate as “Confidential” any such
information, document or material that it reasonably and in good faith believes constitutes or
contains Confidential Information. Although they may also contain “Privileged Information”
(defined below), all medical, billing, pharmacy, insurance, financial and employment records of
any Plaintiff or the relative of any Plaintiff are deemed to be "Confidential” by the Court.
5. All materials designated "Confidential" under this Order shall be clearly stamped
by the party or other person desiring such designation.
6. All testimony and exhibits provided at the depositions in this Action initially shall
be considered "Confidential" and the court reporter shall mark all pages of deposition transcripts
with the designation "Confidential - Subject to Further Confidentiality Review." In order to
maintain the "Confidential" status of such testimony (including exhibits), the Designating Party
must notify all other parties and the court reporter in writing of the specific pages and lines of the
transcript that should be treated as Confidential within thirty (30) days of receipt of the final
transcript. Only the exhibits and those portions of the transcript so designated within that thirty
(30) day period shall be deemed Confidential. Counsel for the opposing party may have
immediate access to the deposition transcript, but prior to the page and line designations, shall
treat the entire transcript as Confidential.
7. All Confidential Information, including any writing or communication
reproducing, paraphrasing, or otherwise disclosing such information, shall not be used for any
purpose by the receiving party except for purposes in connection with (a) the Action, or (b) any
other proceeding filed by one or more of the lawyers for Plaintiffs in the Action alleging birth
defect injuries resulting from exposure to the product(s) at issue in this Action. However,
nothing in this Protective Order shall affect Abbott's ability to review information that plaintiffs
marked "Confidential" and report such information to regulatory agencies in compliance with its
obligations under federal law.
8. Confidential Information that has been produced in this litigation, including any
writing or communication reproducing, paraphrasing, or otherwise disclosing such information,
may be disclosed only to:
a. The parties to this Action, including designated in-house counsel for
Abbott (and the clerical, secretarial and other staff working for in-house counsel in the legal
department) and any employee that Abbott deems necessary to disclose such information for the
purpose of assisting in, or consulting with respect to, the preparation of this Action;
b. The attorneys for the parties to this Action, including the partners,
associates, and stenographic, secretarial, paralegal, clerical and other employees of such counsel.
c. The experts or consultants retained or consulted by the parties to this
Action, including the partners, associates, and stenographic, secretarial, paralegal, clerical and
other employees of such expert or consultant;
d. Any person who prepared or originated the document, who is indicated on
its face as a recipient of a copy thereof, or who otherwise legitimately received a copy; including,
but not limited to, any treating physician or healthcare provider of any Plaintiff (collectively,
“Treating Provider”) whose medical and/or treatment records include the document;
e. With respect to Confidential Information produced by any party to this
Action or third party with respect to Plaintiff's alleged injuries, any Treating Provider, provided
that the Confidential Information is not placed in the possession, custody, or control of a
Treating Provider or in the files maintained by or on behalf of that Provider, and such
Confidential Information must be relevant to the testimony or knowledge of that Provider.
Abbott may only show a Treating Physician medical records for the Plaintiff(s) that he or she
treated.
f. Any person who is scheduled to be a witness at deposition, hearing or trial
in this Action where the Confidential Information is reasonably anticipated to relate to the
testimony or knowledge of such witness;
g. The Court and related officials involved in this litigation, including judges,
magistrates, commissioner, mediators, referees, jurors, court reporters, videographers, and other
Court personnel (provided, however, that any material designated Confidential and filed with the
Court is filed in accordance with the procedures for filing under seal described below); and
h. Any person designated by the Court and in the interest of justice, upon
such terms the Court deems proper.
9. Prior to disclosing Confidential Information to any person listed in Paragraph
8(c), (e) or (h) above, the receiving party shall:
a. provide such person with a copy of this Protective Order;
b. and obtain from such person a signed statement in the form attached
hereto as Exhibit A. Such statement shall be retained by the party and need not be filed with the
Court or served upon opposing counsel unless required by the Court. Parties are required to
maintain copies of all such statements obtained by them and may be required to produce them in
camera to the Court upon request.
10. With regard to any Treating Provider who is shown Confidential Information by a
party pursuant to Paragraph 8(e), the opposing parties must be provided with copies and/or Bates
numbers of such Confidential Information other than those described in Paragraph 8(d). Such
Confidential Information must be disclosed at least three business days before any deposition of
that Provider. If a party first shows Confidential Information to a Treating Provider less than
three business days before that Provider’s deposition, copies of any such “Confidential
Information must be produced to the opposing party before the start of the deposition.
11. Any person listed in Paragraph 8(a), (b), (d), or (f) who receives materials
containing Confidential Information shall:
a. be advised of this Order;
b. be directed to use such Confidential Information only for purposes in
connection with this Action, and in any other proceeding filed by one or more of the lawyers
for Plaintiffs alleging birth defect injuries resulting from exposure to the product(s) at issue in
this Action, and not for any other purpose; and
c. be directed to refrain from disclosing or discussing such Confidential
Information with any person other than those already subject to the terms of this Order.
12. The fact that information or material has been designated as Confidential is not
determinative of whether such information is, in fact, entitled to be deemed as such. All parties
shall bear in mind the Seventh Circuit’s favor for transparency of the public record, and resulting
preference for attaching to Court filings redacted rather than sealed documents. See Citizens
First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999).
13. In the event the nonproducing party wishes to file materials designated as
“CONFIDENTIAL,” the nonproducing party shall file the materials conditionally under seal and
give the producing party contemporaneous notice. If the producing party wishes the materials to
remain filed under seal, the producing party must file a motion within fourteen (14) days and
show good cause. Similarly, should the producing party file its own materials under seal, it shall
do so conditionally and contemporaneously file a motion to show good cause why the materials
should remain under seal. If the Court grants the motion to seal, the materials shall remain filed
under seal. If the Court denies the motion, the materials shall be unsealed.
14. Any summary, compilation, notes, copy, electronic image or database containing
Confidential Information shall be subject to the terms of the Protective Order to the same extent
as the materials or information from which such summary, compilation, notes, copy, electronic
image or database is made or derived.
15. Nothing contained herein shall be construed to affect in any way the admissibility
of any document, testimony, or other evidence at trial.
16. Any party who has designated any material “Confidential” pursuant to this Order
may consent to the removal of such designation by so notifying counsel for the other party in
writing.
17. Any party may object to a designation as follows:
a. The party objecting shall notify the Designating Party in writing of that
objection and shall specify the designated materials, or category or sub-set of information, to
which the objection is made.
b. The parties shall confer in good faith concerning any such objection. If
the objection is not resolved within 10 days after mailing of the notice, then the receiving party
shall file a motion to remove the designation of Confidential. The party designating the
document as Confidential shall have the burden of evidentiary proof to establish grounds for
such treatment as to each document or sub-set of documents where the Confidential designation
has been placed at issue. Any such motion must be filed and served within 30 days after the
expiration of the 10-day period for reaching agreement referenced to previously. Any briefing on
this issue shall be filed under seal. If a motion is filed, information subject to dispute shall, until
further order of the court, be treated consistently with its designation.
18. Neither the taking of any action in accordance with the provisions of this
Protective Order, nor the failure to object thereto shall be construed as a waiver of any claim or
defense in this Action. Moreover, the failure to designate information in accordance with this
Order and the failure to object to a designation at a given time shall not preclude a party from
seeking to impose such designation or challenging the propriety thereof. In the event a party
discovers that it inadvertently produced materials containing Confidential Information without
marking them as such in accordance with this Protective Order, that party may provide written
notice to the receiving party that the materials should be treated as Confidential in accordance
with this Order. Upon receipt of such notice, the receiving party shall treat such materials as
Confidential, and upon receipt of materials properly marked as “Confidential,” shall return or
destroy the unmarked materials and shall reasonably ensure that others to whom the unmarked
materials were disclosed have not retained copies. In the case of inadvertently produced
privileged and/or work product documents, Fed. R. Civ. P. 26(b)(5)(B) shall apply.
19. This Protective Order does not govern the use of Confidential Information at trial.
The Parties and the Court (or a Magistrate Judge to whom proceedings have been referred) shall
determine the appropriate procedures to govern the use of Confidential Information at trial.
20. The terms of this Order shall remain in full force and effect after termination of
this action, unless modified, superseded, or terminated by the written agreement of the parties or
by Order of this Court. Within 30 days after completion of this litigation, all Confidential
Information, including any writing or communication reproducing, paraphrasing, or otherwise
disclosing such information, shall be collected by counsel for the receiving party and returned to
the Designating Materials; provided, however, that attorney work product or pleadings
containing information derived from Confidential Information may be destroyed rather than
returned to the party who supplied such Confidential Information. For purposes of this Order,
this Action shall be considered "completed" upon entry of a dismissal with prejudice of the entire
action or upon ten days following the entry of judgment that has become final and non-
appealable, or from which all appeals have been exhausted.
21. If any attorney work product or pleadings containing information derived from
Confidential Information is destroyed rather than returned to the party who supplied Confidential
Information pursuant to paragraph 19, counsel for the receiving party shall produce a certificate
confirming the destruction of all such Confidential Information (including, but not limited to, the
original versions, all copies made, and all electronic versions) to counsel for the producing party
within 60 days after completion of this Action unless counsel for the receiving party is involved
in other similar litigation that is still pending as specified in paragraph 7.
22. All parties and other persons who receive Confidential Information shall be under
a continuing duty not to disclose such information obtained in the course of this litigation, and
this duty shall continue in full force and effect after the completion of this Litigation.
23. No party may refuse or delay to answer or respond to any discovery request on
the basis that the response or answer would contain Confidential Information. Responsive
documents may not be withheld from production on the basis that such documents contain or
include Confidential Information.
24. "Privileged" materials include any materials that contain information protected
from disclosure as defined by the Federal Rules of Civil Procedure and/or the Federal Rules of
Evidence.
25. The entry of this Order shall neither be construed as a waiver of any right to
object to the furnishing of information in response to discovery nor relieve any party of the
obligation of producing information in the course of discovery. In the event that any responsive
documents are withheld from production on the basis that such documents contain or include
Privileged materials, the party withholding production of such documents shall provide a
Privilege Log on a rolling basis, updated at regular and reasonable intervals, which shall state
with respect to each responsive document being withheld or redacted on the basis that it contains
Privileged materials the following information: (1) the date of the document; (2) the author of the
document; (3) the recipients of the document; (4) the specific privilege being invoked; and (5) a
description of the document necessary to establish the existence of the privilege invoked.
Information qualifying as attorney work product under federal law and created after August 17,
2010 are exempt from the requirements of this paragraph.
26. Parties withholding information on the basis of a privilege are required to redact
privileged information from documents also containing non-privileged information and to
produce the redacted document. A party cannot refuse to produce an entire document on the
basis that the document contains both privileged and non-privileged information.
27. If there is a challenge to a “Privileged” or “Confidential” designation and the
parties are unable in good faith to agree on whether the designation should remain, the party
challenging the designation may move the Court to have the producing, responding or
withholding party, as the case may be, make a witness available for a deposition limited to an
inquiry concerning the "Confidential" or "Privileged" designation of any so-designated materials.
28. The inadvertent production of materials subject to a claim of privilege, work
product, or other statutory or Court-ordered confidentiality shall not result in a waiver of any of
the foregoing protections for the materials, or for any other privileged or immune materials
containing the same or similar subject matter. An inadvertent production by a party in this
Action shall not be used as a basis for arguing that a claim of privilege, work product, or other
statutory or Court-ordered confidentiality has been waived in any other proceeding. If any party
inadvertently produces such materials, upon receipt of notice of such disclosure, the receiving
party shall promptly return or delete from its litigation support or other database(s) such
materials; return or destroy its other copies, if any, of such materials; destroy its notes or other
work product reflecting the contents of such materials; and confirm in writing to the producing
party that all copies of the recalled materials have been returned or destroyed in accordance with
this Order. If the receiving party seeks to challenge the disclosing party's claim that the materials
are privileged, protected, or otherwise subject to recall, it shall present the materials in dispute to
the Court under seal for a determination.
29. This Court shall retain jurisdiction even after the termination of this Action to
enforce the terms of this Order and to make such amendments, modifications, deletions and
additions as the Court deems necessary and appropriate.
30. Parties and counsel are advised that an intentional failure to comply with this
Protective Order may be considered contempt of court and/or sanctionable conduct.
IT IS SO ORDERED.
DATED: 4/22/2013
s/G. Patrick Murphy
HON. G. PATRICK MURPHY
United States District Judge
EXHIBIT A
CERTIFICATE OF ACKNOWLEDGMENT OF PROTECTIVE ORDER
I, ______________________________________, declare that:
I have been given a copy of and have read the Protective Order entered in the action
entitled In re Depakote Cases, Lead Consolidated Case No. 12-52-GPM-PMF (the "Action"). I
agree to abide by the Protective Order and not to reveal or otherwise communicate to anyone or
utilize any of the information designated "Confidential" that is disclosed to me except in
accordance with the terms of such Order. Specifically, but not by way of limitation, I agree to
use such Confidential Information only for purposes in connection with this Action, and in any
other proceeding filed by one or more of the lawyers for Plaintiffs alleging birth defect injuries
resulting from exposure to the product(s) at issue in this Action, and not for any other purpose.
I acknowledge that any violation of the Protective Order may be punishable as contempt
of court or through monetary sanctions ordered by the Court, or both, and agree to submit to the
jurisdiction of the Court in the above-referenced case for purposes of enforcing compliance with
the Protective Order.
Dated: _______________________ ______________________________
Signature
______________________________
Printed Name
______________________________
Address
EXHIBIT
B
1 EXHIBIT B
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, [print or type full
4 name], of [print or type full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective Order
6 that was issued by the United States District Court for the Central District of
7 California on _________________ [date] in the case of JULIAN FISHER as brought
8 through his Conservator JINNA MILLER, v. ABBOTT LABORATORIES, et al., No.
9 2:22-cv-05133-SB (ASx). I agree to comply with and to be bound by all the terms
10 of this Stipulated Protective Order and I understand and acknowledge that failure to
11 so comply could expose me to sanctions and punishment in the nature of contempt.
12 I solemnly promise that I will not disclose in any manner any information or item
13 that is subject to this Stipulated Protective Order to any person or entity except in
14 strict compliance with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court
16 for the Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint [print or
19 type full name] of [print or type full address and telephone
20 number] as my California agent for service of process in connection with this action
21 or any proceedings related to enforcement of this Stipulated Protective Order.
22
23 Date:
24
25 City and State where sworn and signed:
26
27 Printed name:
28 Signature: