IV Solutions Inc v. TakeCare Insurance Company Inc et al

Filing 54

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 22 (ec)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

IV SOLUTIONS, INC., a California
corporation,
Plaintiff,

13
14
15
16

v.

Case No. CV13-04592-JFW (MANx)
PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION

TAKECARE INSURANCE
COMPANY, INC., a Guam
corporation; and DOES 1 through
25, inclusive,

17

Defendants.

18
19
20

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on

21

the parties’ Stipulated Protective Order and [Proposed] Order Thereon

22

(“Stipulation”) filed on November 22, 2013, the terms of the protective order to

23

which the parties have agreed are adopted as a protective order of this Court (which

24

generally shall govern the pretrial phase of this action) except to the extent, as set

25

forth below, that those terms have been substantively modified by the Court’s

26

amendment of paragraphs 6(a), 8(b), 9, 12, 17, and 22 of, and Exhibit A to, the

27

Stipulation.

28

The parties are expressly cautioned that the designation of any information,
-1-

1
2
3
4
5
6
7

document, or thing as “Confidential,” “Confidential Attorneys’ Eyes Only,” or
other designation(s) used by the parties, does not, in and of itself, create any
entitlement to file such information, document, or thing, in whole or in part, under
seal. Accordingly, reference to this Protective Order or to the parties’ designation
of any information, document, or thing as “Confidential,” “Confidential Attorneys’
Eyes Only,” or other designation(s) used by the parties, is wholly insufficient to
warrant a filing under seal.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

There is a strong presumption that the public has a right of access to judicial
proceedings and records in civil cases. In connection with non-dispositive motions,
good cause must be shown to support a filing under seal. The parties’ mere
designation of any information, document, or thing as “Confidential,” “Confidential
Attorneys’ Eyes Only,” or other designation(s) used by parties, does not -- without
the submission of competent evidence, in the form of a declaration or
declarations, establishing that the material sought to be filed under seal
qualifies as confidential, privileged, or otherwise protectable -- constitute good
cause.
Further, if sealing is requested in connection with a dispositive motion or
trial, then compelling reasons, as opposed to good cause, for the sealing must be
shown, and the relief sought shall be narrowly tailored to serve the specific interest
to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th
Cir. 2010). For each item or type of information, document, or thing sought to be
filed or introduced under seal in connection with a dispositive motion or trial, the
party seeking protection must articulate compelling reasons, supported by specific
facts and legal justification, for the requested sealing order. Again, competent
evidence supporting the application to file documents under seal must be
provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in

28
2

1
2
3
4
5
6
7
8
9
10

its entirety will not be filed under seal if the confidential portions can be redacted.
If documents can be redacted, then a redacted version for public viewing, omitting
only the confidential, privileged, or otherwise protectable portions of the document,
shall be filed. Any application that seeks to file documents under seal in their
entirety should include an explanation of why redaction is not feasible.
Notwithstanding any other provision of this Protective Order, in the event that this
case proceeds to trial, all information, documents, and things discussed or
introduced into evidence at trial will become public and available to all members of
the public, including the press, unless sufficient cause is shown in advance of trial
to proceed otherwise.

11
12
13
14
15

THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND
ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE
HONORABLE JOHN F. WALKER, UNITED STATES DISTRICT JUDGE,
INCLUDING THOSE APPLICABLE TO PROTECTIVE ORDERS AND
FILINGS UNDER SEAL.

16
17
18
19
20
21
22
23
24
25
26
27

///
///
///
///
///
///
///
///
///
///
///

28
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

TERMS OF PROTECTIVE ORDER
1.

Definitions: For purposes of this Protective Order, the following definitions

shall apply:
a.

“Confidential Material”: Information (regardless of how

created, generated, stored, or maintained) or tangible things that have not
been made public, the disclosure of which the disclosing Party contends
could cause harm to the business operations of the disclosing Party or
provide improper advantage to others, as well as information that includes
non-public personal or private information, such as (without limitation)
personal health information.
b.

“Confidential Attorneys’ Eyes Only” Material (“AEO

Material”): Confidential Material that is technical, commercial, financial, or
marketing in nature and that the disclosing Party reasonably and in good faith
believes is so highly sensitive that its disclosure to an employee of a
receiving Party would reveal significant business or financial advantages of
the disclosing Party. It includes, without limitation, information that the
Designating Party reasonably and in good faith believes relates to: (1)
current business/strategic plans; (2) technical product specifications and
information; (3) sales, cost, and price information including future
sales/financial projections; (4) non-public marketing information including
future marketing plans; (5) detailed sales and financial data; (6) customer or
supplier lists; or (7) other information of competitive, technical, financial, or
commercial significance comparable to the items listed in this paragraph.
c.

“Challenging Party”: A Party that challenges the designation of

information or items under this Protective Order.
d.

“Designating Party”: A Party that designates information or

items that it produces in disclosures or in responses to discovery as

28
-4-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

“Confidential” or “Confidential Attorneys’ Eyes Only” Material.
2.

This Protective Order shall govern the production, use, and handling of

Confidential Material and AEO Material produced by any Party or non-Party that
provides discovery in connection with the above-captioned action (hereinafter
referred to as “Parties” or “Party”), including responses to written discovery and
deposition testimony. All Confidential Material and AEO Material subject to this
Protective Order shall be used solely for the prosecution and/or defense of the
Action and shall not be used by any other Party, other than the Party that produced
it, in any litigation other than the Action, for business, for competitive purposes, or
for any other purpose whatsoever. The protections conferred by this Protective
Order cover not only Confidential Material and AEO Material, but also: (1) any
information copied or extracted from such Material; (2) all copies, excerpts,
summaries, or compilations of such Material; and (3) any testimony, conversations,
or presentations by Parties or their Counsel that might reveal such Material.
However, the protections conferred by this Protective Order do not cover the
following information: (a) any information that is in the public domain at the time
of disclosure to a receiving Party or becomes part of the public domain after its
disclosure to a receiving Party as a result of publication not involving a violation of
this Protective Order, including becoming part of the public record through trial or
otherwise; and (b) any information known to the receiving Party prior to the
disclosure or obtained by the receiving Party after the disclosure from a source who
obtained the information lawfully and under no obligation of confidentiality to the
Designating Party.
3.

Each Party shall designate Confidential Material by placing a

“CONFIDENTIAL” stamp on each page so designated, for each document or for
such information that, in good faith, the Party believes is Confidential Material.
Any testimony designated as “CONFIDENTIAL” shall be so designated by a Party

28
-5-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

at the time of said deposition or within seven (7) business days of receipt of the
deposition transcript, whichever is the later. Documents and written discovery
responses shall be designated as “CONFIDENTIAL” at the time of production. If
timely corrected, an inadvertent failure to designate qualified information or items
does not, standing alone, waive the Designating Party’s right to secure protection
under this Protective Order for such material. Upon timely correction of a
designation, the receiving Party must make reasonable efforts to assure that the
material is treated in accordance with the provisions of this Protective Order.
4.

Each Party shall designate AEO Material by placing a

“CONFIDENTIAL ATTORNEYS’ EYES ONLY” stamp on each page so
designated, for each document or information that, in good faith, the Party believes
is AEO Material. Any deposition testimony designated as “CONFIDENTIAL
ATTORNEYS’ EYES ONLY” shall be so designated by a Party at the time of said
deposition or within seven (7) business days of receipt of the deposition transcript,
whichever is later. Documents and written discovery responses shall be designated
as “CONFIDENTIAL ATTORNEYS’ EYES ONLY” at the time of production.
Notwithstanding any other terms of this Protective Order, a Party may not designate
material produced by another Party as AEO Material. If timely corrected, an
inadvertent failure to designate qualified information or items does not, standing
alone, waive the Designating Party’s right to secure protection under this
Protective Order for such material. Upon timely correction of a designation, the
receiving Party must make reasonable efforts to assure that the material is treated in
accordance with the provisions of this Protective Order.
5.

Confidential Material shall not be shown, revealed, released, disclosed,

or communicated in any way to any person or entity, except those listed in
Paragraphs 6 and 9 below, without the advance written authorization of the
Designating Party.

28
-6-

1

6.

2

Confidential Material may only be disclosed to the following:
a.

To the Court and its personnel, subject to Paragraph 9 below;

b.

3

Outside counsel for the Parties to the Action, their respective

4

associates, partners, clerks, paralegals, legal assistants,

5

secretaries, and other support staff who are actively engaged in

6

assisting such attorneys in the prosecution or defense of the

7

Action;

8

c.

9

required to assist in the conduct of the Action, to the extent that

10

counsel of record determines that disclosure is necessary for the

11

prosecution or defense of the Action, provided that prior to

12

disclosure, any such expert is provided with a copy of this

13

Protective Order and acknowledges in writing that he or she

14

agrees to be bound by these terms (see Exhibit A, attached

15

hereto);

16

d.

17

necessary for the prosecution or defense of the Action; and

19

e.

20

counsel to assist such counsel in connection with the Action.

22

25
26
27

Clerical or ministerial service providers, including outside
copying services and court reporters, retained by a Party’s

21

24

The Parties to the Action and their employees, to the extent that
their respective counsel determines that such disclosure is

18

23

Experts retained or consulted by any Party or their counsel as

f.
7.

Authors, addressees, or recipients of the Confidential Material.

AEO Material shall not be shown, revealed, released, disclosed, or

communicated in any way to any person or entity, except those listed in Paragraphs
8 and 9 below, without the advance written authorization of the Designating Party.
8.

AEO Material may only be disclosed to the following:
a.

Outside counsel for the Parties to the Action, their respective

28
-7-

1

associates, partners, clerks, paralegals, legal assistants,

2

secretaries, and other support staff who are actively engaged in

3

assisting such attorneys in the prosecution or defense of the

4

Action;

5

b.

To the Party who or which produced it;

d.

7

To the Court and its personnel, subject to Paragraph 9 below;

c.

6

The author of the document or material and to anyone shown on

8

the document or material as having received it in the ordinary

9

course of business;

10

e.

11

required to assist in the conduct of the Action, to the extent that

12

counsel of record determines that disclosure is necessary for the

13

prosecution or defense of the Action, provided that prior to

14

disclosure, any such expert is provided with a copy of this

15

Protective Order and acknowledges in writing that he or she

16

agrees to be bound by these terms (see Exhibit A, attached

17

hereto); and

18

f.

19

22
23
24
25
26
27

To such other persons as hereafter may be designated by written
authorization by the Designating Party or by further order of the

20
21

Experts retained or consulted by any Party or its counsel as

Court.
9.

Without written permission from the Designating Party or a Court

order secured after appropriate notice to all interested persons, a Party may not file
in the public record any Confidential Material or AEO Material. A Party that seeks
to file under seal any Confidential Material or AEO Material must comply with
Civil Local Rule 79-5, this Protective Order, District Judge Walter’s Standing
Order Re: Proposed Protective Orders and Filings Under Seal. Confidential
Material or AEO Material may only be filed under seal pursuant to a Court order

28
-8-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

authorizing the sealing of the specific Confidential Material or AEO Material at
issue.
10.

Challenging Confidentiality Designations.
a.

Timing of Challenges. Any Party may challenge a designation

of confidentiality at any time. Unless a prompt challenge to a Designating
Party’s confidentiality designation is necessary to avoid foreseeable,
substantial unfairness, unnecessary economic burdens, or a significant
disruption or delay of the litigation, a Party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge
immediately after the original designation is disclosed.
b.

Meet and Confer. The Challenging Party shall initiate the

dispute resolution process by providing written notice of each designation it
is challenging and describing the basis for each challenge. To avoid
ambiguity as to whether a challenge has been made, the written notice must
recite that the challenge to confidentiality is being made in accordance with
this specific paragraph of the Protective Order. The Parties shall attempt to
resolve each challenge in good faith and must begin the process by
conferring within 14 days of the date of service of notice. In conferring, the
Challenging Party must explain the basis for its belief that the confidentiality
designation was not proper and must give the Designating Party an
opportunity to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the
basis for the chosen designation. A Challenging Party may proceed to the
next stage of the challenge process only if it has engaged in this meet and
confer process first or establishes that the Designating Party is unwilling to
participate in the meet and confer process in a timely manner.
c.

Judicial Intervention. If the Parties cannot resolve a challenge

28
-9-

1
2
3
4
5
6
7

without Court intervention, the Challenging Party may file a motion (in
compliance with Civil Local Rule 79-5, if applicable) challenging
confidentiality at any time if there is good cause for doing so, including a
challenge to the designation of a deposition transcript or any portions thereof.
Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet
and confer requirements imposed by the preceding paragraph.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

The burden of persuasion in any such challenge proceeding shall be on
the Designating Party. Frivolous challenges and those made for an improper
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. All parties shall
continue to afford the material in question the level of protection to which it
is entitled under the Designating Party’s designation until the Court rules on
the challenge.
11.

A Designating Party will use reasonable efforts to avoid designating,

or to de-designate in a reasonable time after request, any document or information
as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS’ EYES ONLY ” that
is not entitled to such designation or that is generally available to the public.
12.

Subject to the provisions of the Federal Rules of Civil Procedure and

the Federal Rules of Evidence, nothing in this Protective Order shall in any way
limit the uses that the Parties may make of their own Confidential or AEO Material.
To the extent a Designating Party elects to publicly disclose Confidential or AEO
Material in a court filing (by not applying to have such material under seal), all
other Parties may do so likewise.
13.

Within thirty (30) days of the conclusion of the Action, each Party

shall return all Material designated “CONFIDENTIAL” and/or “CONFIDENTIAL
ATTORNEYS’ EYES ONLY” to the Party on whose behalf such Material was

28
- 10 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

produced or, at the option of the producing Party, counsel for each Party shall
certify in writing that such material has been destroyed. Each Party returning or
destroying CONFIDENTIAL and/or CONFIDENTIAL ATTORNEYS’ EYES
ONLY Material is responsible for any costs associated with the return and/or
destruction of such Materials.
14.

If a Party is served with a subpoena or a court order issued in other

litigation that compels disclosure of any CONFIDENTIAL and/or
CONFIDENTIAL ATTORNEYS’ EYES ONLY Material, that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena
or order is subject to this Protective Order. Such notification shall include a copy
of this Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” and/or “CONFIDENTIAL ATTORNEYS’ EYES
ONLY” before a determination by the court from which the subpoena or order
issued, unless the Party has obtained the Designating Party’s permission. The
Designating Party shall bear the burden and expense of seeking protection in that
court of its confidential material. Nothing in these provisions should be construed
as authorizing or encouraging a receiving Party in this action to disobey a lawful
directive from another court.
15.

This Protective Order shall continue to be binding throughout the

Action and after its conclusion. The termination of the Action shall not relieve any

28
- 11 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

person to whom Confidential Material or AEO Material has been disclosed from
the obligation of maintaining the confidentiality of such information as set forth
herein.
16.

Nothing herein shall operate as a waiver of the right of any person to

object on any ground to the admissibility of any Confidential Material or AEO
Material in connection with any motions, trial, or arbitration. Nothing herein shall
prevent a witness from reviewing a transcript of his or her deposition testimony and
any exhibits thereto, in accordance with the Federal Rules of Civil Procedure, or
any stipulation placed on the record by counsel.
17.

All disputes concerning matters falling within the scope of or relating

to the interpretation of this Protective Order shall be submitted for ruling to the
above-captioned Court. At any hearing on such submitted matter, the Parties may
seek, before the hearing or at the commencement of the hearing, a Court order
excluding all persons not specifically contemplated by Paragraphs 6, 8, and 9 from
the hearing.
18.

By having entered into this Protective Order, the Parties do not waive

any right(s) to assert the attorney client privilege, work product doctrine, financial
privacy, or any other objection that could be raised in response to any request to
produce documents, interrogatory, and/or deposition examination.
19.

The inadvertent production in discovery of any privileged or otherwise

protected or exempted information, or Confidential Material or AEO Material as
well as the inadvertent production in discovery of information without an
appropriate designation of confidentiality, shall not be deemed a waiver or
impairment of any claim or privilege or protection, including, but not limited to, the
attorney-client privilege, the protection afforded to work-product materials or the
subject matter thereof, or the confidential nature of any such information, provided
that the producing Party shall immediately notify the receiving Party in writing

28
- 12 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

when inadvertent production is discovered. Upon receiving written notice from the
producing Party that privileged information or work-product material has been
inadvertently produced, the receiving Party shall not duplicate the privileged
information, or distribute the privileged information by any means other than
returning it to the producing Party. In addition, once notified of the production of
inadvertent privileged information, the receiving Party shall, if such material has
previously been disclosed to others by the receiving Party, take reasonable steps to
obtain all such previously disclosed material and advise such persons of the claims
of privilege.
20.

by money damages, interim or final injunctive or other equitable relief, sanctions,
contempt of court citation, or such other or additional relief as deemed appropriate
by the Court. The foregoing remedies shall be in addition to any other common law
or statutory relief available for violation of the terms of this Protective Order.
Nothing herein is intended to expand the authority vested in any Magistrate Judge
to whom a dispute under this Protective Order is assigned.
21.

Agreeing to produce or receive Material designated as

“CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS’ EYES ONLY,” or
otherwise complying with the terms of this Protective Order, shall not:

20

a. Operate as an admission by any Party that any Confidential

21

Material or AEO Material contains or reflects trade secrets1 or

22

any other type of confidential or proprietary information entitled

23
24

Any violation of the terms of this Protective Order may be punishable

to protection under applicable law;
Pursuant to California Civil Code § 3426.1, “trade secrets,” as used
herein, “means information, including a formula, pattern, compilation, program,
device, method, technique, or process, that: (1) Derives independent economic
value, actual or potential, from not being generally known to the public or to other
persons who can obtain economic value from its disclosure or use; and (2) Is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy.”
1

25
26
27
28

- 13 -

1

b. Prejudice in any way the rights of any Party to object to the

2

production of documents it considers not subject to discovery, or

3

operate as an admission by any Party that the restrictions and

4

procedures set forth herein constitute adequate protection for

5

any particular information deemed by any Party to be

6

Confidential Material or AEO Material;

7

c. Prejudice in any way the rights of any Party to object to the

8

authenticity or admissibility into evidence of any document,

9

testimony, or the evidence subject to this Protective Order;

10

d. Prejudice in any way the rights of any Party to seek a

11

determination by the Court whether any Confidential Material or

12

AEO Material should be subject to the terms of this Protective

13

Order;

14

e. Prejudice in any way the rights of any Party to petition the Court

15

for a further protective order, or modification or amendment of

16

this Protective Order, relating to any purportedly Confidential

17

Material or AEO Material;

18

f. Prejudice in any way the rights of any Party to petition the Court

19

for permission to disclose or use particular Confidential Material

20

or AEO Material more broadly than would otherwise be

21

permitted by the terms of this Protective Order; or

22

g. Prevent any Designating Party from agreeing to alter or waive

23

the provisions or protections provided for herein with respect to

24
25
26
27

any particular Confidential Material or AEO Material.
///
///
///

28
- 14 -

1
2
3
4

22.

The terms of this Protective Order became effective, pursuant to the

Parties’ Stipulation, upon the date of execution of the Stipulation by counsel for
the Parties.
IT IS SO ORDERED.

5
6

DATED: December 18, 2013

7
8

___________________________________

9
10

MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 15 -

1

EXHIBIT A

2

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

3

I, _____________________________________, declare as follows:

4

I have been requested by counsel for _________________________ to assist

5

with or review certain materials that I have been informed contain

6

“CONFIDENTIAL” Material or “CONFIDENTIAL ATTORNEY’S EYES

7

ONLY” Material within the terms of the Protective Order issued by the Court in the

8

action captioned IV Solutions, Inc. v. TakeCare Insurance Company, Inc., United

9

States District Court, Central District of California, Case No. CV13-04592-JFW-

10

MAN (the “Action”).
I have read the Protective Order in this action and am familiar with its terms.

11
12

On behalf of myself and the business organization with which I am employed or

13

affiliated, if one exists, I agree to comply with and be bound by the Protective

14

Order and agree not to disclose any “CONFIDENTIAL” Material or

15

“CONFIDENTIAL ATTORNEY’S EYES ONLY” Material. I also agree to use

16

such “CONFIDENTIAL” Material or “CONFIDENTIAL ATTORNEY’S EYES

17

ONLY” Material to assist counsel only in the Action and not for any other purpose

18

whatsoever.
I hereby submit myself and my business organization, if one exists, to the

19
20

jurisdiction of the United States District Court for the Central District of California

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
- 16 -

1
2
3
4
5

for the limited purpose of any proceeding relating to performance under,
compliance with, or violation of the Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this ___ day of _________, 20__, at______________________________.
City, State

6
7
8

DATED: ___________________

BY: _______________________________.
Signature
_______________________________
Title

9
10

_______________________________
Address

11

_______________________________
City, State, Zip

12
13

_______________________________

14

Telephone Number

15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 17 -