Ilya Podobedov et al v. Living Essentials, LLC, et al

Filing 71

PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams REGARDING CONFIDENTIAL INFORMATION 70 . **See Order for details.** (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ILYA PODOBEDOV, JORDAN

12 MOUSSOUROS and RICHARD N.

CASE NO. LACV11-6408 PSG (PLAx)

JAMES, on behalf of themselves and all

13 others similarly situated,
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PROTECTIVE ORDER
REGARDING CONFIDENTIAL
INFORMATION

Plaintiffs,
vs.

16 LIVING ESSENTIALS, LLC,

INNOVATION VENTURES, LLC d/b/a

17 LIVING ESSENTIALS, MANOJ

BHARGAVA and BIOCLINICAL

18 DEVELOPMENT, INC.,
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Defendants.

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

ORDER

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THE COURT, having considered the Stipulation of the parties in this

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3 action to enter an order, HEREBY ORDERS THAT:
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1.

Scope of Order. This Order Re: Confidential Information

6 (“Protective Order”) governs the handling of all material produced, given, or filed
7 during discovery or other proceedings in this action, but shall not apply to the trial
8 of this action (at which time the Court will make other orders, as appropriate,
9 concerning this subject). The provisions of this Protective Order shall apply to the
10 Parties, and any other Person producing, receiving, or disclosing Material in this
11 action.
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2.

Definitions.

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(a) As a general guideline, Materials designated as “Confidential”

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shall be those things that may be disclosed to the Parties for

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purposes of this litigation, but which must be protected from

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disclosure to third parties. Absent a specific order from this Court,

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Materials designated as “Confidential” shall be used by the Parties

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solely in connection with this litigation, and not for any business,

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competitive, or governmental purpose or function, and such

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Materials shall not be disclosed to anyone except as provided

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herein.

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(b) As a further general guideline, Materials designated as “Highly

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Confidential” shall be those things of a proprietary business or

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technical nature that might be of value to a competitor or potential

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customer, and that must be protected from disclosure. Absent a

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specific order from this Court, Materials designated as “Highly

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Confidential” shall be used by the Parties solely in connection with

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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this litigation, and not for any business, competitive, or

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governmental purpose or function, and such Materials shall not be

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disclosed to anyone except as provided herein.

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(c) As a further general guideline, Materials designated at “Highly

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Confidential Formula – For Attorneys’ Eyes Only” shall be those

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things that relate to a Party’s proprietary product formula that must

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be protected from disclosure. Absent a specific order from this

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Court, Materials designated as “Highly Confidential Formula – For

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Attorneys’ Eyes Only” shall be used by the Parties solely in

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connection with this litigation, and not for any business,

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competitive, or governmental purpose or function, and such

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Materials shall not be disclosed to anyone except as provided

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herein.

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(d) “Protected Material” means any type or classification of Material

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that is designated as “Confidential,” “Highly Confidential,” or

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“Highly Confidential Formula – For Attorneys’ Eyes Only” by the

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Producing Person and that contains trade secrets, future business

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plans, information regarding products not released or announced to

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the public, nonpublic proprietary product development

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information, nonpublic proprietary product formula information,

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customer lists, nonpublic financial information, nonpublic business

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operations information of a confidential nature, personnel

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information in an employee’s confidential employment file, and/or

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information protected by the right to privacy. For purposes of

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clarification, a Producing Person may designate Material as

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“Highly Confidential” or “Highly Confidential Formula –

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Attorneys’ Eyes Only” only if the Producing Person believes in

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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good faith the Material contains extremely sensitive confidential

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information, including but not limited to information which is

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commercial, pricing, cost, or marketing information relating to the

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Producing Person or the Producing Person’s commercial products

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or planned commercial products, or technical and research

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information or product formula information that is extremely

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sensitive. Publicly available information is not Protected Material.

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The Parties cannot reasonably anticipate all information that will

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be requested and produced in this action, and they therefore reserve

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the right to designate as Protected Material any document or

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category of information that they in good faith believe is entitled to

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the designation even if it is not expressly mentioned in the

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definition above.

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(e) “Confidential Information” means any information contained in

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Protected Material, as defined above, and only the limited portions

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of briefs, memoranda, exhibits, or testimony, or the limited

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portions of any other writing filed with the Court that mentions,

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discusses, or refers to any Protected Material.

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(f) “Material” means papers, documents, tapes, testimony, and other

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information produced, given, or filed during discovery or other

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proceedings in this action, including, but not limited to, answers to

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interrogatories, responses to requests for admissions, deposition

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testimony, information provided during any settlement discussions,

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and all copies, excerpts, summaries, and information derived from

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any such papers or documents.

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(g) “Person” means a natural person, firm, association, organization,

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partnership, business, public entity, or other person acting on

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

behalf of such person.

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(h) “Party” or “Parties” means Living Essentials, LLC, Innovation

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Ventures, LLC, Manoj, Bhargava, Bio Clinical Development, Inc.,

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Ilya Podobedov, Jordan Moussouros, and Richard N. James, or any

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other Person who is joined in this action as a party.
(i) “Producing Person” means any Person, as defined above,

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producing or disclosing Material in this action.

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(j) “Discovering Party” means any Party that requests and receives

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Materials in this action through the discovery process.

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3.

Designation of Protected Material. A Producing Party may

11 designate discovery Material as “Confidential,” “Highly Confidential,” or “Highly
12 Confidential Formula – Attorneys’ Eyes Only” in the following manner:
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(a) Designation of Documents: Any document (defined herein as

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including, but not limited to: exhibits, documents and things

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(including computer diskettes and other storage media) produced in

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response to discovery requests, interrogatory responses, responses

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to requests for admission, motions, briefs, memoranda, and copies

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of any of the foregoing) produced or given by any Producing

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Person during discovery, hearings, or trial in this case which sets

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forth or contains any Confidential Information may be so

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designated by affixing the legend “Confidential,” “Highly

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Confidential,” or “Highly Confidential Formula – Attorneys’ Eyes

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Only” as applicable, on each page containing Confidential

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Information at the time such document is produced or provided, or

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as soon thereafter as the Producing Person seeking protection

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becomes aware of the confidential nature of the document.

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(b) Designation of Deposition Testimony: Deposition testimony may

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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be designated “Confidential,” “Highly Confidential,” or “Highly

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Confidential Formula – Attorneys’ Eyes Only” by oral designation

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on the record, or within ten (10) days after the transcript of such

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deposition is mailed to the designating Person. The designating

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Person shall instruct the court reporter to separately bind the

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portions of the deposition transcript so designated, and to stamp the

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word “Confidential,” “Highly Confidential,” or “Highly

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Confidential Formula – Attorneys’ Eye Only” as applicable, on

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each designated page of the transcript. Pending expiration of this

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ten-day period, all Parties shall treat all deposition testimony and

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exhibits as if they had been designated as “Highly Confidential.”

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(c) Treatment of Court-Filed Materials. A Party that intends to file

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with the Court any information that another Party or non-party has

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designated as “Confidential,” “Highly Confidential,” or “Highly

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Confidential Formula – Attorneys’ Eyes Only” shall comply with

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the sealing and lodging requirements of the Court’s Local Rules.

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Where only a portion of the submission or filing contains

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Confidential Information, only that portion shall be filed under

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seal. The parties shall keep in confidence all copies of such

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Materials as provided in this Order.

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Treatment of Protected Material. Material designated “Highly

22 Confidential Formula – Attorneys’ Eyes Only” may not be disclosed expect as set
23 forth in paragraph 5 below. Material designated “Highly Confidential” may not be
24 disclosed except as set forth in paragraph 6 below. Material designated
25 “Confidential” may not be disclosed except as set forth in paragraph 7 below.
26 Protected Material shall be kept in secure facilities, and access to those facilities
27 shall be permitted only to those Persons having proper access thereto under this
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

1 Protective Order. Protected Material shall be used solely for the purposes of this
2 litigation and shall not be used for any business or other purpose. The restrictions
3 on use of Protected Material set forth in this Order shall survive the conclusion of
4 the litigation, and, after conclusion of this litigation, the Court shall retain
5 jurisdiction for the purpose of enforcing this Protective Order.
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5.

Access to Material Designated “Highly Confidential Formula –

7 Attorneys’ Eyes Only.” Material designated “Highly Confidential Formula –
8 Attorneys’ Eyes Only” may be disclosed only to the following:
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(a) Counsel of record for any Party, including any attorneys at their

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law firms to whom it is necessary that the information be disclosed

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for the purposes of this litigation;

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(b) Court personnel, including stenographic reporters engaged in such

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proceedings as are necessarily incident to preparation for trial and

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trial of this action;

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(c) Not more than four (4) independent consultants or experts, retained

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in connection with this action, provided that each such person first

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acknowledges in writing, under oath, that he or she has read this

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Protective Order and agrees to be bound by its terms, and provided

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further that such person first acknowledges the she/he does not

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have a business or competitive conflict with any Party. This

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acknowledgment shall be made by execution of the Declaration

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attached hereto as Exhibit A. The attorneys of record for the

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Discovering Party will inform the Producing Person prior to

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disclosure to the independent consultant or expert that the material

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will be provided to an independent consultant or expert, and that

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the independent consultant or expert has agreed not to disclose the

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material to anyone other than counsel of record for any Party. The

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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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identities of the experts or consultants need not be provided to the

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opposing party in advance of disclosure. All such written

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acknowledgments shall be maintained by counsel making the

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disclosure of the Protected Material, and shall be provided to the

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opposing Party’s counsel at the conclusion of this action, upon

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request. If it becomes necessary for a party to show the

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information to more than four experts, it must first seek permission

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from the opposing party. If such permission is denied, the party

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seeking further disclosure may move the Court;

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(d) Paralegal, stenographic, clerical and secretarial personnel regularly

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employed by counsel of record to whom disclosure is reasonably

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necessary in connection with this litigation, provided that each

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such person first acknowledges in writing, under oath, that he or

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she has read the Protective Order and agrees to be bound by its

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terms, and provided further that such person first acknowledges the

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she/he does not have a business or competitive conflict with any

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Party. This acknowledgment shall be made by execution of the

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Declaration attached hereto as Exhibit A; and

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(e) Any other Person to whom the Producing Person agrees in writing.

20 Nothing in this Order shall prohibit a Party, or Persons employed or formerly
21 employed by or affiliated with such Party, from reviewing the Materials it
22 designates as Highly Confidential Formula – Attorneys’ Eyes Only, or from
23 reviewing any Materials it has authored or on which it is identified as a recipient.
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Except as otherwise specifically noted, all procedures in the remaining

25 paragraphs of this Protective Order that govern the treatment of information
26 designated as Confidential or Highly Confidential shall also govern the treatment
27 of information designated as “Highly Confidential Formula – Attorneys’ Eyes
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

1 Only.” If a provision provides for different treatment of information designated as
2 Confidential and Highly Confidential, then the “Highly Confidential Formula –
3 Attorneys’ Eyes Only” information shall be entitled to the higher level of
4 protection.
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Access to Material Designated “Highly Confidential.” Material

6 designated “Highly Confidential” may be disclosed only to the following:
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(a) Counsel of record for any Party, including in-house counsel;

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(b) Paralegal, stenographic, clerical, and secretarial personnel regularly

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employed by counsel listed in (a) above;

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(c) Court personnel, including stenographic reporters engaged in such

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proceedings as are necessarily incident to preparation for trial and

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trial of this action;

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(d) Personnel of copy service firms or attorney service firms retained
by counsel listed in (a) above in connection with this action;
(e) Any independent consultant or expert, retained in connection with

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this action, provided that each such person first acknowledges in

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writing, under oath, that he or she has read this Protective Order

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and agrees to be bound by its terms, and provided further that such

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person first acknowledges the she/he does not have a business or

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competitive conflict with any Party. This acknowledgment shall be

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made by execution of the Declaration attached hereto as Exhibit A.

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All such written acknowledgments shall be maintained by counsel

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making the disclosure of the Protected Material, and shall be

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provided to the opposing Party’s counsel at the conclusion of this

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action, upon request; and

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(f) Any other Person to whom the Producing Person agrees in writing.

27 Nothing in this Order shall prohibit a Party, or Persons employed or formerly
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

1 employed by or affiliated with such Party, from reviewing the Materials it
2 designates as Highly Confidential, or from reviewing any Materials it has authored
3 or on which it is identified as a recipient.
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Access to Material Designated “Confidential.” Material designated

5 “Confidential” may be disclosed to any Person listed in paragraphs 5 and 6 above
6 and, in addition, may be disclosed to a Party; any officer, director, employee, or
7 former employee of a Party; or to any officer, director, employee, or former
8 employee of a parent, subsidiary, or affiliate of a Party, disclosure to whom counsel
9 believes in good faith is necessary to assist in the prosecution or defense of this
10 action, provided that such Person agrees to maintain the confidentiality of the
11 information disclosed in accordance with the terms of this Protective Order by
12 execution of the Declaration attached hereto as Exhibit A.
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Examination of Third Party Witnesses. Any Person may be

14 examined as a witness during a deposition concerning any Protected Material that
15 appears on its face or from other documents or testimony to have been received or
16 authored by that Person. During examination, an examining Party may show such
17 a witness such Protected Material. If a Party wishes to examine a witness during a
18 deposition concerning any Protected Material of another Person, and the witness
19 has not previously received, authored, or otherwise had lawful access to such
20 Protected Material, the examining Party shall first obtain the consent of the
21 Producing Person who designated the Material, or their attorneys, if any, and shall
22 require the witness to agree to maintain the confidentiality of the Protected
23 Material in accordance with the terms of this Protective Order by execution of the
24 Declaration attached hereto as Exhibit A.
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9.

Challenging Confidentiality Designations. By entering into this

26 Protective Order, no Party concedes that any Material designated as Protected
27 Material has been properly so designated. Should any Party object to any
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

1 confidentiality designation, the objecting Party shall provide written notice of the
2 basis for such objection to the Producing Party and shall attempt in good faith to
3 resolve the objection informally with the Producing Party as soon as practicable. If
4 the objection cannot be informally resolved within a reasonable time, the objecting
5 Party may move for an order determining whether the Materials are properly
6 designated, pursuant to Local Rule 37-1, et seq. Until a motion is filed and
7 resolved by the Court, all such Materials shall be treated as Protected Materials.
8 The foregoing is without prejudice to the right of any Person to apply to the Court
9 for modification of this Protective Order or for a further protective order relating to
10 Confidential Information.
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Confidentiality Obligations to Third Parties. In the event that

12 information in the possession or control of a Person from whom discovery is
13 sought involves the confidentiality rights of a non-party or that its disclosure would
14 violate a Protective Order issued in another action, the Person with possession or
15 control of the information will attempt to obtain the consent of the non-party to
16 disclose the information subject to the terms of this Protective Order. If the
17 consent of the non-party cannot be obtained, the Person will notify the Party
18 seeking discovery of: (a) the existence of the information without producing such
19 information; and (b) the identity of the non-party (provided, however, that such
20 disclosure of the identity of the non-party in and of itself does not violate any
21 confidentiality obligation). The Party seeking discovery may then make further
22 application to the non-party or seek other means to obtain such information.
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11.

Inadvertent Disclosure of Confidential Information. Inadvertent

24 failure to designate as Protected Material any information pursuant to this Order
25 shall not constitute a waiver of any otherwise valid claim for protection thereof, so
26 long as such designation is asserted promptly following discovery of the
27 inadvertent failure. At such time, arrangements shall be made for the Producing
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[PROPOSED] PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

1 Party to appropriately mark the information in accordance with this Order.
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Inadvertent Disclosure of Privileged Information. The production

3 (or making available for inspection) of Material without an express written notice
4 of intent to waive the attorney-client privilege or work product immunity or any
5 other applicable privilege or immunity from discovery shall not constitute a waiver
6 of the attorney-client privilege or work product immunity or any other applicable
7 privilege or immunity from discovery, so long as the Producing Person informs the
8 Receiving Person of the identity of the Materials the Producing Person contends
9 are privileged, reasonably promptly after the Producing Person becomes aware of
10 the specific Materials that were allegedly inadvertently produced. If the Receiving
11 Person becomes aware of specific Materials that it believes may be subject to a
12 claim of privilege by the Producing Person, the Receiving Person shall timely
13 notify the Producing Person of these specific Materials. Upon being made aware
14 of these Materials, the Producing Person shall timely designate any such Materials
15 as within the attorney-client privilege or work product immunity or any other
16 applicable privilege or immunity and request return of such Materials to the
17 Producing Person. Upon request by the Producing Person, the Receiving Person
18 shall immediately return all copies of such inadvertently produced Material(s), and
19 shall otherwise comply with the provisions of Federal Rule of Civil
20 Procedure 26(b)(5)(B). Nothing herein shall prevent the Receiving Person from
21 challenging the propriety of the attorney-client privilege or work product immunity
22 or other applicable privilege or immunity designation by submitting a written
23 challenge to the Court, but any such challenge shall not assert as a basis the fact or
24 circumstances of the inadvertent production. If a claim is disputed, the Receiving
25 Person shall not use or disclose Materials for which a claim of privilege or
26 immunity is made pursuant to this paragraph for any purpose until the matter is
27 resolved by agreement of the parties or by the Court. This Order constitutes a party
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1 agreement within the meaning of Federal Rule of Evidence 502(e), and upon
2 adoption by the Court a court order within the meaning of Federal Rule of
3 Evidence 502(d), and thus supersedes any inconsistent provisions of Federal Rule
4 of Evidence 502(b).
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Conclusion of Action. This Protective Order, insofar as it restricts

6 the communication and use of Confidential Information, shall continue to be
7 binding throughout and after the conclusion of this action, including any appeals.
8 At the conclusion of this action, including appeals, counsel for each Party shall
9 either return to the Producing Person or destroy all Protected Materials, and shall
10 designate in writing that all such materials have in fact been returned or destroyed.
11 Notwithstanding the foregoing, counsel for the Parties need not return or destroy
12 any Protected Material that becomes a part of the Court record in this action, by use
13 as a trial exhibit, inclusion in a court filing, inclusion in any record on appeal, or
14 otherwise.
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Inadmissibility. This Protective Order, the fact of its adoption or

16 entry, and any provision of this Protective Order or attached form shall not be
17 admissible for any purpose of this litigation, except to the extent necessary to
18 enforce its terms. In any such enforcement proceeding, the prevailing party shall
19 recover its reasonable attorneys’ fees and expenses in maintaining such proceeding.
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Reservation of Objections to Production. Nothing in this Protective

21 Order shall be construed as an agreement to produce any Material, or as a waiver of
22 any objections to the production of that Material.
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Miscellaneous. Nothing in this Protective Order shall preclude any

24 party from making any claim of privilege as to any information requested by
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1 another party. Failure to designate Material as Protected Material shall not
2 constitute a waiver of any other claim of privilege.
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IT IS SO ORDERED.

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Dated: September 11, 2012

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Paul L. Abrams
U.S. MAGISTRATE JUDGE

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