United States of America et al v. Celgene Corporation

Filing 161

STIPULATED PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal re Stipulation for Protective Order 160 . (mr)

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Karen P. Hewitt (SBN 145309)
[e-mail]
Beong-Soo Kim (SBN 212911)
[e-mail]
JONES DAY
555 South Flower Street, Fiftieth Floor
Los Angeles, CA 90071.2300
Telephone: [phone]
Facsimile: [phone]
Kimberly A. Dunne (SBN 142721)
[e-mail]
Sean A. Commons (SBN 217603)
[e-mail]
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
CELGENE CORPORATION
(Additional Counsel listed on following page)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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UNITED STATES OF AMERICA, the
STATES OF CALIFORNIA,
COLORADO, CONNECTICUT,
DELAWARE, FLORIDA, GEORGIA,
HAWAII, ILLINOIS, INDIANA,
LOUISIANA, MARYLAND,
MASSACHUSETTS, MICHIGAN,
MINNESOTA, MONTANA, NEVADA,
NEW HAMPSHIRE, NEW JERSEY,
NEW MEXICO, NEW YORK, NORTH
CAROLINA, OKLAHOMA, RHODE
ISLAND, TENNESSEE, TEXAS,
VIRGINIA, WASHINGTON,
WISCONSIN, the DISTRICT OF
COLUMBIA, and the CITY OF
CHICAGO, ex rel. BEVERLY BROWN

Case No. 10-cv-03165 GHK (SSx)
Assigned to: Hon. George H. King
STIPULATED PROTECTIVE
ORDER
[Discovery Document: Referred to
Magistrate Judge Suzanne H. Segal]

v.
CELGENE CORPORATION,
Defendant.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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Toni-Ann Citera (admitted pro hac vice)
[e-mail]
JONES DAY
222 East 41st Street
New York, New York 10017
Los Angeles, CA 90071.2300
Telephone: [phone]
Facsimile: [phone]

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Kristin Graham Koehler (admitted pro hac vice)
[e-mail]
James C. Stansel (admitted pro hac vice)
[e-mail]
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order.

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1.

Good Cause Statement

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Fed. R. Civ. P. 26(c) requires parties to show good cause for the entry of a

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protective order by the Court. “[R]estraints placed on discovered, but not yet

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admitted, information are not a restriction on a traditionally public source of

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information.” Foltz v. State Farm Mutual Automobile Ins. Co., 331 F.3d 1122, 1134

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(9th Cir. 2003). As a result, “[w]hile courts generally make a finding of good cause

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before issuing a protective order, a court need not do so where (as here) the parties

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stipulate to such an order.” In re Roman Catholic Archbishop of Portland in Oregon,

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661 F.3d 417, 424 (9th Cir. 2011); Foltz, 331 F.3d at 1131 (noting a district court need

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not require a good cause showing for discovery documents not filed with the court

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“given the onerous burden document review entails”). In order to establish good

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cause for this protective order, to protect the public interest, and to allow for future

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judicial review or public challenges, the parties stipulate to the following facts, and

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the following principles are the basis upon which documents and information in this

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action may be determined to be subject to this protective order.

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Because this case involves the pharmaceuticals, medical records pertaining to

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include patient identifying information and are protected from disclosure by the

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physician-patient privilege, HIPAA, or other applicable law. See, e.g., 45 C.F.R.

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§ 164.512(e)(1)(ii)(B) (requiring protective order prior to disclosure of protected

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health information in response to discovery requests absent individual notice to

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individuals); Cal. Civ. Code §§ 56 et seq.; Cal. Code Civ. Proc. § 1985.3(a)(1). In

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the prescription and use of the drugs at issue may be relevant. Many such records

addition, businesses such as Defendant ordinarily maintain the confidentiality of trade
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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secrets and other confidential research, development, or commercial information (as

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those terms are used in Fed. R. Civ. P. 26(c)). Also, pharmaceutical manufacturers,

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such as Defendant, may derive a competitive advantage from the foregoing

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information and from the fact that such information is kept confidential. Fed. R. Civ.

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P. 26(c)(1)(G); see also, e.g., Cal. Civ. Code § 3426.1; Amini Innovation Corp. v.

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McFerran Home Furnishings, Inc., 2:14-cv-02464-RSWL-SS (C.D. Cal. 2014), Dkt.

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No. 34 (protecting “trade secrets” as confidential).
This case may also involve information submitted to governmental and/or

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regulatory agencies that is exempt from public disclosure, see, e.g., 5 U.S.C.

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§ 552(b)(4), (6), (7)(A), (7)(B), (7)(C), as well as information that the Designating

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Party is under a duty to preserve as confidential under an agreement with or other

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obligation of another person. See, e.g., Deckers Outdoor Corp. v. JLJ Footwear, Inc.,

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2:14-cv-00202-SVW-SS (C.D. Cal. 2014), Dkt. No. 23, pg. 2 (approving protective

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order applicable to “[i]nformation that the Party is under a duty to preserve as

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confidential under an agreement with or other obligation to another Person”). In

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addition, personnel and employment information also may be relevant to this action

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and may contain information that should remain confidential. See, e.g., Foltz, 331

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F.3d at 1134 (identifying “personnel information” as subject to protection);

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Mardirossian v. Sears Holdings Man. Corp., 2:12-cv-08161-JAK-SS (C.D. Cal.

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2012), Dkt. No. 23, pg. 2 (identifying “personnel files and other personnel-related

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information” as confidential); Jefferson v. Boeing Co., 2:13-cv-04453-PSG-SS (C.D.

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Cal. 2013), Dkt. No. 18, pg. 2 (identifying “private personnel information of third

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party employees” as confidential). Finally, materials requested during the course of

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discovery may contain information that, if subject to public disclosure, could expose

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individuals to annoyance, embarrassment, harassment, oppression or undue burden or

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expense. See, e.g., Fed. R. Civ. P. 26(c)(1); cf. 11 U.S.C. § 107(c)(1)(A). 1

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1

By identifying these categories of information potentially subject to designation as
Confidential Information, neither party waives any objections to discovery. See infra
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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Good cause exists because, if such information was produced without a

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protective order in place, then, among other things: the privacy rights of third parties

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privacy rights protected under Constitutional, statutory, and common law principles

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would be violated; third parties could be exposed to embarrassment, theft, fraud, or

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harassment; a Producing Party could be accused of breaching a statutory, contractual,

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or common law duty to protect private and/or proprietary information from public

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disclosure; competitors could unfairly leverage the time, money, and expertise

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invested by a Producing Party to develop non-public, proprietary information (such as

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business and marketing plans, research, pricing and sales information, and trade

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secrets), and thereby irreparably injure the Producing Party in the marketplace.

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Accordingly, to expedite the flow of information but also adequately protect

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Confidential Information, a protective order is justified. It is the intent of the parties

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that information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in a

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confidential, non-public manner, and there is good cause to protect it.

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2.

Scope

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This Order shall be applicable to and govern all Confidential Information

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produced, furnished or created during the course of this Action, including any

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materials or information sought from a non-party who receives a subpoena in

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connection with this Action or otherwise produces materials or information in this

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Action. The Confidential Information protected includes, but is not limited to:

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materials and information produced in response to requests for production of

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documents; answers to interrogatories; answers to requests for admission; responses to

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requests for production of documents; deposition testimony, exhibits, transcripts, and

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videotapes; all other discovery, pleadings, briefs, memoranda, affidavits, transcripts;

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and other materials furnished by or on behalf of any party to this Action. Any

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sections I.A.19.
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summary, analysis, description, compilation, notes, excerpt, copy, electronic image or

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database containing Confidential Information shall be subject to the terms of this

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Order to the same extent as the material or information from which such summary,

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analysis, description, compilation, notes, excerpt, copy, electronic image, or database

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is made or derived.

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This Order applies to all Confidential Information produced in this Action,

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regardless of whether such document or information was produced prior to or after

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entry of this Order.

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In the event that non-parties produce Confidential Information in connection

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with this Action, the production may be made subject to the provisions of this Order.

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As necessary and appropriate to uphold the terms of this Order, the existence of this

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Order may be disclosed to any person (including any non-party served with a

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subpoena in this action) producing Confidential Information in this Action.

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Nothing in this Order is intended to conflict with the applicable Local Rules.

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Insofar as anything in this Order could be interpreted as conflicting with the

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applicable Local Rules, the Local Rules will govern. Any use of Confidential

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Information during a court hearing or at trial shall be governed by the orders of the

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presiding judge.

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3.

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The term “Producing Party” means the party or non-party producing or

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disclosing documents or information that are designated as Confidential Information

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under this Order.

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Definitions

The term “Receiving Party” shall mean the party or parties to whom
Confidential Information is produced or otherwise disclosed.

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4.

Confidential Information

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Any party to this Action may designate information or documents produced in

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this Action as “Confidential Information” if such party has the reasonable and good
faith belief that such information is non-public and constitutes her, his, or its trade
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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secret, other confidential information within the meaning of Rule 26(c)(1)(G) of the

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Federal Rules of Civil Procedure, or otherwise protected from public disclosure. This

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includes but is not limited to confidential research, development, or commercial

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information (as those terms are used in Fed. R. Civ. P. 26(c)), and personal medical

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information, private personal information, employment information, health

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information, and tax returns.

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Any non-party may designate information or documents produced in this

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Action by that non-party as “Confidential Information” if such non-party has the

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reasonable and good faith belief that such information is non-public and constitutes

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her, his, or its trade secret, other confidential information within the meaning of Rule

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26(c)(1)(G) of the Federal Rules of Civil Procedure, or otherwise protected from

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public disclosure.

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Any information supplied in documentary or other tangible form may be

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designated by the Producing Party as Confidential Information by marking or

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stamping on each page of such document, transcript, or exhibit, or on the face of such

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thing, the legend “CONFIDENTIAL INFORMATION.” Where such marking of

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material is impossible or impractical (such as groups of documents in native form), the

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Producing Party shall designate in writing, at the time of its production, that the

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material contains Confidential Information. Information produced by a non-party but

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subsequently designated as confidential by a party to the Action shall be treated as

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Confidential Information, and the recipients shall either mark their copies as

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“CONFIDENTIAL INFORMATION” or request that the Producing Party provide a

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replacement set so marked.

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5.

Use of Information

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All information or documents disclosed in this Action, whether or not

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and not in connection with any other litigation or judicial or regulatory proceeding or

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containing Confidential Information, shall be used solely for purposes of this Action

for any business, commercial, competitive, personal or other purpose.
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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6.

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Confidential Information shall be maintained in confidence pursuant to this

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Restrictions on the Disclosure of Confidential Information

Order and shall be disclosed only to the following persons:
a.

Counsel and in-house counsel for the parties, as well as their

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paralegal, investigative, technical, secretarial, and clerical

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personnel who are engaged in assisting them in the Action;

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b.

Officers and employees of the named parties, but only insofar as

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reasonably necessary for the prosecution and defense of the

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Action;

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c.

Non-party experts or consultants retained in good faith to assist the

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parties in connection with the Action, provided that prior to the

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time that any such expert or consultant is given access to

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Confidential Information, such person is provided with a copy of

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this Confidentiality Order and such expert or consultant shall

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execute an undertaking in the form of Exhibit A hereto agreeing to

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be bound by this Confidentiality Order, which undertaking shall be

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retained by counsel for the party who engaged such expert or

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consultant;

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d.

Any witness or potential witness and counsel for that witness or

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currently employed by the Producing Party nor an expert witness

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covered by subparagraph d above, the Confidential Information

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may be disclosed to the witness or potential witness only if the

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Confidential Information is relevant to the Action and to the

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person’s knowledge and potential testimony, and provided that

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prior to the time that any such witness or potential witness is given

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access to Confidential Information, such person is provided with a

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potential witness. If the witness or potential witness is neither

copy of this Confidentiality Order and (i) such person executes an
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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undertaking in the form of Exhibit A hereto agreeing to be bound

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by this Confidentiality Order or, if the witness or potential witness

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refuses to executes the undertaking, (ii) counsel giving access to

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Confidential Information advises the witness or potential witness

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of the provisions of this Confidentiality Order and prevents such

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witness or potential witness from retaining possession of any

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Confidential Information;

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e.

court or arbitral proceedings at which Confidential material is

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disclosed;

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Court reporters, stenographers or video operators at depositions,

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Any persons requested by counsel to furnish services such as a

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mock trial or jury profiling; translation or court reporting services;

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demonstrative exhibit preparation; the creation of any computer

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database from documents; or the production, reproduction,

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organizing, filing, coding, cataloging, converting, storing,

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retrieving and review of Confidential Information, to the extent

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reasonably necessary to assist the parties in connection with the

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Action; and

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g.

Any other person designated by the Court, upon such terms as the

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Court may deem proper, or agreed to by written stipulation of the

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parties.

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Counsel is responsible for ensuring that those persons identified in subsections

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(c), (f) and (g) of this section are aware of the terms and conditions of this

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Confidentiality Order, and Counsel may fulfill this obligation by obtaining a signed

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Confidentiality Agreement in the form attached as Exhibit A.

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If any person wishes to submit any Confidential Information to the Court, the

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person shall, unless directed by the Court to do otherwise, comply with Local Rule
79-5, including any procedures adopted under the Pilot Project for the Electronic
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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Submission and Filing of Under Seal Documents. If a person’s request to maintain a

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submission containing Confidential Information under seal is denied as to one or more

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submissions, and the person does not seek reconsideration under the applicable Local

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Rules or otherwise appeal the denial, then those submissions may be placed in the

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public record.

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7.

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In the event that any question is asked at a deposition that involves or calls for

Procedure for Designating Deposition Testimony

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the disclosure of Confidential Information, the witness shall nevertheless answer such

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question unless he or she has an independent basis for not responding, provided that

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the only persons in attendance at the deposition are persons who are permitted to

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receive the Confidential Information. Testimony given at a deposition may be

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designated as Confidential Information by making a statement to that effect on the

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record. Alternatively, within thirty (30) business days after receipt of a transcript, the

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parties also may designate such transcript or any portion thereof by notifying all

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parties, in writing, of the specific pages and lines of the transcript which should be

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treated as Confidential Information. All deposition transcripts shall be treated as

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“Confidential” until thirty (30) business days after receipt thereof by counsel for the

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parties and counsel for the witness. The reporter for any deposition shall mark with

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the legend “CONFIDENTIAL” pages that contain testimony designated as

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Confidential Information during the deposition.

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8.

Use of Confidential Information at Pre-trial Hearings

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This Order does not govern the conditions under which Confidential

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Party intends to use Confidential Information during a pre-trial hearing that has not

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otherwise been identified in a motion or other filing relating to the pre-trial hearing,

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the parties agree that the Receiving Party shall notify the Producing Party reasonably

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in advance of the hearing so that a Producing Party can raise issues relating to

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Information can be used at pre-trial or trial proceedings. In the event that a Receiving

confidentiality with the Court. Nothing in this provision, however, shall be construed
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as preventing a presiding judge from allowing or permitting Confidential Information

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to be disclosed at a pre-trial hearing, limiting the right of a party to object to evidence

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offered without advance notice at a pre-trial hearing, or as limiting a Designating

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Party’s right to object to or seek a separate protective order to govern use of

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Confidential Information at a pre-trial hearing.

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9.

Inadvertent Production of Privileged Materials

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Pursuant to Fed. R. Evid. 502(d), disclosure of privileged or otherwise protected

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disclosure in this action. In the event any document is produced that the Producing

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Party later claims is protected by the attorney-client privilege, work product doctrine

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or other privilege or immunity, the production shall not be deemed a waiver or

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impairment of any claim of privilege or protection or the subject matter thereof,

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provided that the Producing Party shall immediately notify the Receiving Party in

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writing when the inadvertent production is discovered. Within five (5) business days

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of receiving written notice, along with a log accurately describing such material

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consistent with Fed. R. Civ. P. 26(b)(5)(A), from the Producing Party that privileged

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or protected information has been inadvertently produced, the Receiving Party shall

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(a) return all such information, and all copies thereof, to the Producing Party,

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reviewing such information (if at all) no more than is permitted by the applicable

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ethical rules; (b) take all reasonable steps to retrieve the information if the Receiving

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Party disclosed it before being notified; and (c) certify that any materials prepared by

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the Receiving Party incorporating such information, such as notes, memoranda, etc.,

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have been destroyed. If the Receiving Party wishes to challenge the claimed

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privilege, work-product protection or immunity, the Receiving Party must still comply

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with (a) and (b) in the preceding paragraph, except that the Receiving Party may retain

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any notes referencing the Confidential Information insofar as such retention is

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permitted by the applicable ethical rules and the notes are necessary to comply with

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information is not waived for purposes of other actions or proceedings by inadvertent

Local Rule 37.
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In the event the Receiving Party wishes to challenge the claimed privilege,

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work-product protection or immunity, the parties shall comply with Local Rule 37 in

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resolving their dispute. The parties agree any permissible retention of notes

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referencing the Confidential Information for the sole purpose of complying with Local

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Rule 37 shall not be grounds for arguing that the document is not privileged, work-

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product-protected or otherwise immune, or that any privilege, protection or immunity

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was waived thereby. During the pendency of the Local Rule 37 process, the

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Receiving Party shall make no other use or disclosure of the subject material or the

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information contained therein. If the motion is unsuccessful, the Receiving Party shall

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comply with (c) in the preceding paragraph.

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10.

Inadvertent Failure to Designate

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Inadvertent failure to designate any material or information as Confidential

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Information pursuant to this Order shall not constitute a waiver of any otherwise valid

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claim for protection and may be remedied by supplemental written notice. If such

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notice is given, all information so designated shall be fully subject to this Order as if it

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had been initially designated as Confidential Information. After any designation is

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made in accordance with this paragraph, arrangements shall be made for the return to

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the Producing Party of all copies of the inadvertently undesignated documents and for

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the substitution, where appropriate, of properly labeled copies.

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11.

Purpose of Order

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Nothing in this Order, nor the production of any documents or disclosure of any

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information pursuant to this Order, shall be deemed to have the effect of (i) an

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admission or waiver, including waiver under the rules of evidence, by any party or

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other subscriber to this Order; (ii) altering the confidentiality or nonconfidentiality of

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any such information; or (iii) altering any existing obligation of any party or other

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subscriber, or the absence of such obligation.

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12.

Challenges to Confidentiality Designation

If the Receiving Party disagrees with the confidentiality designation by the
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Producing Party, then the parties shall comply with Local Rule 37 in resolving the

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dispute. Pending a determination by the Court, such information shall be treated by

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all parties as Confidential in accordance with this Order .

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13.

Subpoenas

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If Confidential Information in the possession, custody, or control of any

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Receiving Party subject to this Order is sought by subpoena, motion, or other form of

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discovery request or compulsory process, the Receiving Party to whom the process or

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discovery request is directed, shall (i) on or before the second business day after

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receipt thereof, give telephonic notice and written notice by hand, facsimile, or e-mail

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of such process or discovery request, together with a copy thereof, to counsel for the

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Producing Party; (ii) cooperate to the extent necessary to permit the Producing Party

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to seek to quash or modify such process or discovery request, consistently with Local

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Rules 37 and 45; and (iii) not make production or disclosure of such Confidential

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Information until the Producing Party consents in writing to production or the

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Receiving Party is required by a court order to produce such Confidential Information,

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so long as the order is not stayed prior to the date set for production or disclosure.

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14.

Disposition Upon Conclusion

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Within sixty (60) days after final termination of this Action, including all

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Producing Party or destroy all originals of material produced and designated as

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Confidential Information and all identical copies, whether in whole or in part, of such

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documents, and (ii) destroy all copies thereof, as well as all notes, memoranda or other

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documents that summarize, discuss or quote materials produced and designated as

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Confidential Information, except that, with respect to word processing and database

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tapes and disks, they shall destroy or erase such tapes or disks to the extent

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practicable. Outside counsel for each party shall be entitled to retain copies of any

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deposition transcripts and exhibits and any pleadings, motions, memoranda, or

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appeals, all parties and experts, consultants and witnesses shall (i) return to the

exhibits that have been filed with the Court or admitted into evidence and that contain
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or refer to information designated as Confidential Information, provided that all such

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documents shall remain subject to this Order. Counsel of record for the parties shall

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certify in writing to each Producing Party that the foregoing has been complied with.

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15.

Parties’ Own Information

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This Order shall not limit a Producing Party’s use of its own Confidential

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Information. Such disclosures shall not affect any designation of such documents as

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Confidential.

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16.

Remedies

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If Confidential Information is disclosed to or comes into the possession of any

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person other than in a manner authorized in this Order, the party responsible for the

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disclosure shall immediately (1) inform those persons of this Order; and (2) inform the

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person who designated the material as Confidential Information and the other parties

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already subject to this Order that are in possession of such Confidential Information of

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all pertinent facts relating to such disclosure and shall make reasonable efforts to

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prevent further disclosure by each unauthorized person who received Confidential

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Information.

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This Confidentiality Order will be enforced under applicable law. All other

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remedies available to any person injured by a violation of this Confidentiality Order

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are fully reserved.

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17.

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Notice under this Confidentiality Order shall be to the parties as follows, unless

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Notice

this provision is modified by the parties in writing and filed with this Court:
Notice to Celgene shall be made to:

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Karen Hewitt
12265 El Camino Real
Suite 200
San Diego, California 92130-409
Tel: [phone] / Fax: [phone]

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[e-mail];

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and

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[PROPOSED] STIPULATED PROTECTIVE ORDER

Kim Dunne
555 West Fifth Street
Los Angeles, CA 90013
Tel: [phone]

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[e-mail].
Notice to Brown shall be made to:

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David Fischer
GRANT & EISENHOFER P .A.
1747 Pennsylvania Ave., NW, Suite 875
Washington, DC 20006
Tel: [phone] / Fax: [phone]
[e-mail].

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18.

Jurisdiction

Unless prohibited by a statute, court order, or applicable rule, the parties may

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extend or modify deadlines under this Order by written stipulation amongst

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themselves or, where applicable, with third parties.

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The Court retains jurisdiction to amend or modify this Order upon stipulation of
the parties to this Action, motion by a party or non-party, or on its own motion.

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19.

Right to Assert Other Objections

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By stipulating to the entry of this Order, no Party waives any right it otherwise

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would have to object to disclosing or producing any information or item on any

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ground not addressed in this Order. Similarly, no Party waives any right to object on

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

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20.

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Nothing in this Order abridges the right of any person to seek its modification

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Right to Further Relief

by the Court in the future.

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21.

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This Order shall survive and remain in full force and effect after termination of

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Order to Remain in Force

this Action.

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203593175

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[PROPOSED] STIPULATED PROTECTIVE ORDER

IT IS SO STIPULATED

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Dated: September 19, 2014

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By: /s/ Kimberly A. Dunne
Kimberly A. Dunne

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Attorneys for Defendant
CELGENE CORPORATION

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JONES DAY / SIDLEY AUSTIN LLP

Dated: September 19, 2014

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GRANT & EISENHOFER P.A.
By: /s/ David T. Fischer
David T. Fischer
Reuben A. Guttman
James J. Sabella

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BIENERT, MILLER & KATZMAN, PLC
Thomas H. Bienert, Jr.
Ariana Seldman Hawbecker

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Attorneys for Plaintiff-Relator
BEVERLY BROWN

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FOR GOOD CAUSE SHOWN, IT IS SO
ORDERED

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Dated: September 22, 2014

_________________/S/_______________
Hon. Suzanne H. Segal, Magistrate Judge

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203593175

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[PROPOSED] STIPULATED PROTECTIVE ORDER