Eclat Pharmaceuticals LLC v. West-Ward Pharmaceutical Corp et al

Filing 60

STIPULATION AND PROTECTIVE ORDER 59 by Magistrate Judge Paul L. Abrams. NOTE CHANGES MADE BY THE COURT. (es)

NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ÉCLAT PHARMACEUTICALS, LLC,
a Delaware corporation,

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Plaintiff,

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Case No. 2:13CV6252 JAK(PLAx)
STIPULATION AND [PROPOSED]
PROTECTIVE ORDER

v.
WEST-WARD PHARMACEUTICAL
CORP., a New Jersey corporation; APP
PHARMACEUTICALS, INC. dba
FRESENIUS KABI USA, LLC, a
Delaware
corporation;
and
AMERICAN REGENT, INC., a New
York Corporation,
Defendants.

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COOLEY LLP
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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA

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STIPULATION AND [PROPOSED] PROTECTIVE ORDER GOVERNING
THE HANDLING OF CONFIDENTIAL MATERIAL
Recitals and Good Cause Statement

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A.

Plaintiff Eclat Pharmaceuticals, LLC (“Plaintiff”) and defendants

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West-Ward Pharmaceutical Corp. (“West-Ward”), and APP Pharmaceuticals, Inc.

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dba Fresenius Kabi USA, LLC (“APP”) (collectively “Defendants”), in the above

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captioned action, titled and numbered, Eclat Pharmaceuticals, LLC v. West-Ward

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Pharmaceutical Corp. et al., Case No. 13-cv-06252-JAK-PLA (“Litigation” or

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“Action”), contemplate that discovery of documents and other information in the

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Litigation may involve the production of documents and other information a

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producing party may reasonably believe in good faith to be protected from public

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disclosure under Rule 26(c) of the Federal Rules of Civil Procedure and/or

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California’s statutory and/or Constitutional provisions conferring rights of privacy.

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B.

Plaintiff and Defendants (each referred to individually as a “Party”,

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and collectively as “Parties”) desire to enter into this stipulation to facilitate the

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discovery process by protecting against the unauthorized disclosure of confidential

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materials.

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C.

The Parties acknowledge that this stipulation (and if approved, Order),

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does not confer blanket protections on all disclosures or responses to discovery but

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that the protection it affords only extends to documents and other information or

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items that are either entitled, under the applicable legal principles, to confidential

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treatment, or, if not entitled to confidential treatment, are subject to the Parties’

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agreement to treat such information or items as confidential, subject to appropriate

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court orders.

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D.

The Parties further acknowledge that this stipulation (and if approved,

Order), does not create entitlement to file confidential information under seal.
E.

The Parties believe good cause exists for approving the stipulation

because the stipulation seeks to protect against injury caused by the public

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA

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dissemination of confidential documents and information. The Parties contend that
if the sensitive commercial information identified infra in paragraph 3, subparts 19, were to be publicly known, the Party protecting such information from disclosure
would be harmed because the commercial value of such documents and information
(which derive value from not being publicly known) would be destroyed. With
respect to the items identified infra in paragraph 3, subparts 10-11, the Parties
contend that such documents and information are protected from public disclosure
by a person’s right to privacy.

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Stipulation

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NOW, THEREFORE, the Parties hereby stipulate and agree, through their
undersigned counsel, to the following terms and conditions that they contemplate
will govern the production of documents and other information that the producing
party reasonably and in good faith deems to be confidential, and further jointly
request that the Court enter a protective order consistent with the terms of this
stipulation (hereafter “Protective Order” or “Order”).
1.

Scope. The following terms, conditions, procedures, and restrictions

govern with respect to documents, electronic data, graphics, and any other forms of
information produced or voluntarily exchanged in the Litigation by any Party or
non-parties (“Third Parties” or singularly, “Third Party”), including any “writing,”
“recording,” “photograph,” “original”, or “duplicate” (as those terms are defined in
Rule 1001 of the Federal Rules of Evidence); all discovery contemplated by Rules
26-36 of Federal Rules of Civil Procedure, including responses to all written
discovery requests and demands, deposition testimony and exhibits, however
recorded; and any other written, recorded, or graphic matters produced by a Party
(“Produced Material”). Produced Material that is designated, in accordance with
this Protective Order, as “Confidential” or “Highly Confidential” shall be referred
to as “Protected Material” within the meaning of this Protective Order.

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA

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2.

Good Faith Designations.

Each Party agrees that designation of

Protected Material and responses to requests to permit further disclosure of
Protected Material shall be made in objective good faith and not: (a) to impose
burden or delay on an opposing Party, or (b) for tactical or other advantage in
litigation. Further, each Party agrees to make best efforts to avoid as much as
possible inclusion of Protected Material in briefs and other captioned documents
filed in court, in order to minimize sealing and designating such briefs and other
captioned documents as Protected Material.
3.

Protected Material. The categories of Protected Material include, but

is not limited to: (1) non-public technological and scientific product development
research in which the Parties or Third Parties have invested significant resources;
(2) non-public manufacturing research and development information (including, for
example, manufacturing protocols) in which the Parties or Third Parties have
invested

significant

resources;

(3) non-public

presentations,

marketing

communications, or plans for presentations, advertisements and marketing
communications; (4) non-public market, demographic, or product research and
advertising development; (5) non-public business plans; (6) prices paid for
components of products, to the extent such information is not publicly known;
(7) non-public commercial information (including, for example, negotiations,
vendor, supply and other contracts and license agreements) constituting highly
sensitive material that competitors would consider valuable; (8) non-public
business financial information (including, for example, budgeting, accounting, sales
figures and advertising expenditures); (9) non-public business relationship
information (including, for example, information pertaining to potential and/or
existing customers, competitors, suppliers, distributors, affiliates, subsidiaries, and
parents); (10) the names, street addresses, e-mail addresses and/or telephone
numbers of customers or employees; and (11) personnel information (including, for

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STIPULATED AND [PROPOSED]
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example,

4.

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and

other

employment

information)

Designations.

It shall be the duty of the Party producing any

Protected Material (“Producing Party”) to give notice that such Protected Material
is covered by this Protective Order in the manner set forth in paragraph 8 below. A
Party with an interest, other than the Producing Party, in the confidentiality of the
Produced Material, either before or after production, may also give notice that the
material is Protected Material covered by this Protective Order and should be
designated in the manner set forth in paragraph 8 below (collectively with
“Producing Party,” the “Designating Party”).
5.

Duties.

The duty of the Party or Parties receiving the Protected

Material (“Receiving Party”) and of all other persons bound by this Protective
Order to maintain the confidentiality of Protected Material in accordance with this
Protective Order shall commence with notice of a designation made in accordance
with paragraph 4. Protected Material shall be designated by Designating Party,
subject to the provisions of this Order, with one of the following designations:
a.

“Confidential;” or

b.

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evaluations

maintained as confidential for employee privacy reasons.

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compensation,

“Highly Confidential - Attorneys’ Eyes Only.”

No person subject to this Protective Order may disclose, in public or private, any
Protected Material designated by a Party or Third Party other than itself as
“Confidential” or “Highly Confidential - Attorneys’ Eyes Only,” except as provided
for in this Protective Order or as further ordered by the Court.
6.

Definition Of Confidential. Protected Material may be designated as

“Confidential” if the Designating Party believes in objective good faith that such
material constitutes or discloses or relates to processes, operations, research,
technical or developmental information, production, marketing, sales, financial, or
other proprietary data or information of commercial value consistent with Federal

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA

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Rule of Civil Procedure 26(c), or personnel or customer or otherwise personal
private data that is protected from public disclosure by a person’s right to privacy.
7.

Definition Of Highly Confidential – Attorneys’ Eyes Only. “Highly

Confidential – Attorneys’ Eyes Only” information is a narrow subset of
“Confidential” information.

Protected Material may be designated as “Highly

Confidential – Attorneys’ Eyes Only” if such material constitutes or contains, in
whole or in part, information including, but not limited to: (i) information obtained
from a nonparty pursuant to a current Nondisclosure Agreement (“NDA”); (ii) trade
secrets; (iii) confidential settlement agreements or confidential settlement
communications, and (iv) any other competitive customer, product, market,
contract, regulatory, tax, and financial information that might harm a Party’s
competitive standing outside of the litigation if it is disclosed to another Party in the
litigation. However, information regarding a Party’s statements, representations, or
pronouncements made to customers or prospective customers regarding whether the
Party’s neostigmine methylsulfate product is FDA approved or does not require
FDA approval or is superior in quality or effectiveness to another manufacturer’s
neostigmine methylsulfate product cannot be designated as “Highly Confidential –
Attorneys’ Eyes Only.”
8.

Method Of Designation. Any Produced Material that the Designating

Party in good faith wishes to designate as Protected Material must be labeled with
the legend “Confidential” or “Highly Confidential - Attorneys’ Eyes Only,” as
appropriate, at the time the material, or a copy thereof, is provided to the Receiving
Party, or at any time thereafter. In the case of material contained in or on media
other than paper, the Producing Party shall affix such a label to the material or use
its best efforts to identify the material as Protected Material. With respect to
material produced by another Party, a Designating Party may give notice to all

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
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other Parties in the Action, in writing, that the material is Protected Material
covered by this Protective Order.
9.

Access To Confidential Material. Only the following persons shall

have access to or retain material designated as “Confidential” pursuant to paragraph
8 of this Order:
a.

The Court and its official personnel;

b.

Outside Counsel for a Party. For the purposes of this Protective

Order, “Outside Counsel” means attorneys for the law firms retained by the Parties
for this Action, including paralegals, office clerks, secretaries, and other support
staff assisting those attorneys, working on the Action;
c.

Outside experts and consultants retained by the Receiving

Party’s Outside Counsel to assist in this litigation (and the experts’ or consultants’
staff whose duties and responsibilities require access to such materials), who are not
past or present employees of the Receiving Party or of an affiliate of the Receiving
Party, and agree, in writing, to be bound by this Protective Order by executing an
acknowledgment in the form of Exhibit A that is annexed to this Protective Order;
d.

Court reporters and translators;

e.

Outside litigation support personnel retained by Outside Counsel

to assist in the preparation and/or litigation of the Action, including contract
attorneys or outside copying service vendors or electronic document management
vendors, and who agree, in writing, to be bound by this Protective Order by
executing an acknowledgment in the form of Exhibit A that is annexed to this
Protective Order;
f.

Any person who was involved in the preparation of such

material, who received or reviewed such material for purposes other than this
Action, who has been alleged to have received or reviewed such material for

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STIPULATED AND [PROPOSED]
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CASE NO. 13-CV-06252-JAK-PLA

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purposes other than this Action, or who has otherwise been authorized by the
Designating Party to view the Protected Material;

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g.

executives of the Parties to this Action, including the Parties’ inside counsel; and

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h.

writing, to be bound by this Protective Order by executing an acknowledgment in
the form of Exhibit A that is annexed to this Protective Order.
10.

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Access To Confidential - Attorneys’ Eyes Only Material. Only the

following persons shall have access to or retain material designated as “Highly
Confidential – Attorneys’ Eyes Only” pursuant to paragraph 8 of this Order:
a.

Persons listed in paragraph 9 (a), (b), (c), (d), (e), and (f); and

b.

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Persons whom the Designating Party agrees in writing or on the

record at a deposition may be shown “Confidential” material, and who agree, in

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The Parties and the employees, officers, directors, and

Persons whom the Designating Party, if applicable, agrees in

writing or on the record at a deposition may be shown “Highly Confidential –
Attorneys’ Eyes Only” material, and who agree, in writing, to be bound by this
Protective Order by executing an acknowledgment in the form of Exhibit A that is
annexed to this Protective Order.
11.

Acknowledgement By Persons Accessing Protected Materials. The

acknowledgment form (i.e. Exhibit A to this Protective Order) executed by the
required individuals (as identified in paragraph 9(c), 9(e), 9(h) and 10(b)) shall be
maintained in the files of the counsel allowing access by such person to the
“Confidential” or “Highly Confidential - Attorneys’ Eyes Only” material.
Individuals identified in paragraphs 9(c), 9(e), 9(h) and 10(b) who fail to execute
the acknowledgement (Exhibit A) shall not be permitted to view the Protected
Material.
12.

Third Party Protected Material In Possession Of Parties. During

the course of this Action, a Party may be requested to produce to another Party

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
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documents and other information that is subject to contractual or other obligations
of confidentiality owed to a Third Party by the Party receiving the request. The
Party subject to such contractual or other obligation of confidentiality shall timely
contact the Third Party to determine whether such Third Party is willing to permit
disclosure of the confidential documents, things, or information under the terms of
this Protective Order and shall inform the Third Party of the contents of this
Protective Order and specifically of this paragraph. If the Third Party consents to
the disclosure of the subject material to the requesting Party, the documents, things,
or information shall be produced in accordance with this Order. If the Third Party
does not consent to the disclosure of the confidential documents, things, or
information under the terms of this Protective Order, the Party subject to such
contractual or other obligation of confidentiality shall promptly notify the
demanding Party in writing of the Third Party’s refusal to consent. Unless the
Party subject to such contractual or other obligation of confidentiality moves for a
protective order under Rule 26(c) of the Federal Rules of Civil Procedure, such
Party shall also provide the demanding Party (a) a copy of any document imposing
the contractual or other obligation of confidentiality, so long as that document is not
itself subject to a contractual or other obligation of confidentiality, (b) a log of the
categories of documents, things, or information being withheld, and (c) the Third
Party’s name and contact information such that the demanding Party may subpoena
documents directly from the Third Party.
13.

Production By Third Parties. If documents, things, or information

are requested from a Third Party and such Third Party claims that certain of the
documents, things, or information requested are confidential or proprietary to such
Third Party or contain information that is protected from public disclosure by a
person’s right to privacy, such Third Party may, if it desires, adopt the benefits and

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STIPULATED AND [PROPOSED]
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burdens of this Order as it applies to Parties in this case by agreeing to be bound by
the terms of this Order.
14.

Designation Of “Confidential” Or “Highly Confidential –

Attorneys’ Eyes Only” Information At Depositions. In the case of depositions,
designation of the portion of the transcript (including exhibits) which contains
“Confidential” or “Highly Confidential - Attorneys’ Eyes Only” shall be made by a
statement to such effect on the record in the course of the deposition; or upon
review of such transcript, by counsel for the party to whose “Confidential” or
“Highly Confidential - Attorneys’ Eyes Only” the deponent has had access, said
counsel designating within fourteen (14) days after counsel’s receipt of the
transcript, and listing on a separate piece of paper the numbers of the pages of the
transcript containing “Confidential” or “Highly Confidential - Attorneys’ Eyes
Only” inserting the list at the end of the transcript, and mail or email serving copies
of the list to counsel for all Parties so that it may be affixed to the face of the
transcript and each copy thereof. Pending such designation by counsel, the entire
deposition transcript, including exhibits, shall be deemed “Highly Confidential –
Attorneys’ Eyes Only.” If no designation is made within fourteen (14) days after
receipt of the transcript, the transcript shall be considered not to contain any
“Confidential” or “Highly Confidential - Attorneys’ Eyes Only” other than those
portions designated on the record during the deposition, if any. Nothing in this
paragraph precludes the Parties from jointly agreeing in writing, on a depositionby-deposition basis, to shorten the fourteen (14) day time period available to
designate a transcript as “Confidential” or “Highly Confidential - Attorneys’ Eyes
Only” following receipt of the transcript.
15.

Use Of “Confidential” Or “Highly Confidential – Attorneys’ Eyes

Only” Material At A Deposition.

Counsel shall not disclose “Confidential”

information or “Highly Confidential - Attorneys’ Eyes Only” information to a

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witness testifying at a deposition except in strict conformity with the provisions of
this Order. No such disclosure shall be made to any witness unless that witness is
entitled by this Order to receive that “Confidential” or “Highly Confidential Attorneys’ Eyes Only” information or the Party or Third Party that produced that
“Confidential” or “Highly Confidential - Attorneys’ Eyes Only” information
assents to the disclosure of such information in writing or on the record of the
deposition. If, during the course of any deposition, (a) an attorney-of-record for
any Party desires to make inquiry into information subject to the designation
“Confidential” or “Highly Confidential - Attorneys’ Eyes Only” or (b) an attorneyof-record for any Party asserts that an answer to a specific inquiry is subject to the
foregoing designation, the attorney shall make such inquiry only in the presence of
those persons authorized access to such information. Such testimony shall be
designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only,” as
appropriate, and the Parties to this Protective Order shall treat it subject to the
provision for disclosure set forth in this Protective Order. Counsel for either Party
shall have the right to exclude from oral depositions, other than the deponent and
the reporter, any person who is not authorized by this Protective Order to receive
documents or information designated “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only.” Such right of exclusion shall be applicable only during
periods of examination or testimony directed to or comprising “Confidential” or
“Highly Confidential – Attorneys’ Eyes Only” information.
16.

Treatment

Of

Protected

Material

During

Inspection

Of

Documents. It is contemplated that a Party or a Third Party might make available
certain of its files for inspection by the Parties, which files may contain confidential
as well as non-confidential material, and that following such inspection, the
inspecting party will designate documents to be copied and the copies will be
furnished or produced to it. All documents and their contents made available for

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such inspection shall be treated as “Highly Confidential - Attorneys’ Eyes Only”
until the Designating Party has had a reasonable opportunity, not to exceed fourteen
(14) days, to designate and mark those documents which were copied as either
“Confidential” or “Highly Confidential - Attorneys’ Eyes Only.”
17.

Copies, Summarizations, Extracts Protected.

Protected Material

designated under paragraph 8 of this Order shall include, without limitation: (a) all
copies, extracts, and complete or partial summaries prepared from such documents,
things, or information so designated; (b) portions of deposition transcripts and
exhibits to deposition transcripts that contain, summarize, or reflect the content of
any such documents, things, or information; (c) portions of briefs, memoranda, or
any other writings filed with the Court and exhibits thereto that contain, summarize,
or reflect the content of any such documents, things, or information; and
(d) deposition testimony designated in accordance with paragraph 14 above.
18.

Pleadings And Briefs Containing Protected Material. The Parties

may request that the Court permit filing of any material designated “Confidential”
or “Highly Confidential – Attorneys’ Eyes Only,” pursuant to paragraph 8 above,
under seal and that such Protected Material be made available only to the Court and
to persons authorized by the terms of this Protective Order. The Party filing any
paper that contains, summarizes, or reflects any such Protected Material shall
request that the material be filed under seal pursuant to the procedures set forth in
Central District of California Local Civil Rule 79-5.1. The request that the material
be filed under seal must show good cause for the underseal filing and shall be
directed to the judge to whom the papers are directed. Pending the ruling on the
request that the material be filed under seal, the papers or portions thereof subject to
the sealing request shall be lodged under seal.
19.

Court Hearings And Other Proceedings. Nothing contained in this

Protective Order shall be construed to prejudice any Party’s right to use before the

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Court any “Confidential” or “Highly Confidential - Attorneys’ Eyes Only”
Protected Material.

However, before doing so, to the extent not otherwise

authorized to be so used hereunder, the Party intending to use “Confidential” or
“Highly Confidential - Attorneys’ Eyes Only” Protected Material shall so inform
the Court and all other Parties or affected Third Parties (i.e., Third Parties whose
Protected Material would be used before the Court) with enough time to reasonably
allow any Party or affected Third Party to apply to the Court for appropriate
protection, including clearing the hearing room or courtroom of persons not entitled
to receive “Confidential” or “Highly Confidential - Attorneys’ Eyes Only”
Protected Material pursuant to paragraphs 9 and 10. “Confidential” or “Highly
Confidential - Attorneys’ Eyes Only” Protected Material shall not be publicly
presented to the Court before giving a Party or Third Party opposing public
disclosure a reasonable opportunity to be heard by the Court on the proposed public
disclosures, unless the material is filed under seal or otherwise protected form
public disclosure.
20.

Testimony At Court Hearings And Other Proceedings.

All

testimony elicited during hearings and other proceedings that counsel for a Party or
Third Party indicated on the record may be subject to the protections of this Order
shall be deemed “Highly Confidential - Attorneys’ Eyes Only” until the expiration
of fourteen (14) days after delivery of a copy of the transcript of the testimony by
the court reporter to counsel who requested a copy of the transcript. Within the
fourteen (14) day period following such mailing of the transcript, any Party may
move to seal the transcript under Local Civil Rule 79-5.1, designating all or any
portion of the testimony as “Confidential” or “Highly Confidential - Attorneys’
Eyes Only.”

Upon being informed that certain portions of a transcript are

designated as “Confidential” or “Highly Confidential - Attorneys’ Eyes Only” each
Party must have each copy in their custody, possession or control immediately

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marked with the appropriate designation at the appropriate pages. Such designation
must remain until the Court rules on the motion to seal.
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restrictions set forth in this Protective Order shall not apply to documents, things, or
information that the Parties agree, or that the Court rules:

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a.

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Have become public knowledge in a manner other than through

a violation of this Order; or

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This Order Does Not Apply To Non-Private Information. The

b.

Have been independently obtained by the non-Designating Party

from sources that suggest the documents, things, or information are not
confidential, as evidenced by written documentation.
22.

Challenge To Designations. If a Receiving Party seeks removal of

protection for particular items designated as Protected Material on the ground that
such protection is not warranted under controlling law, the following procedure
shall be used:
a.

The Receiving Party seeking such removal shall give counsel of

record for the Designating Party, notice thereof, in writing, by facsimile, email, or
overnight courier, specifying the documents and/or other information for which
such removal is sought and the reasons for the request. The Designating Party shall
have ten (10) business days after receiving that notification within which to object
to the removal of protection afforded by this Protective Order. Any such objection
shall be made in writing (by facsimile, email, or overnight courier). Failure to
object within the requisite time limit is deemed a waiver of any claim to protection
for that specific document, thing, or information under this Protective Order.
b.

If the Designating Party objects to the removal of the protection

afforded by this Protective Order and the Receiving Party intends to submit the
dispute to the Court for a ruling, the Receiving Party shall request to meet-and-

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STIPULATED AND [PROPOSED]
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CASE NO. 13-CV-06252-JAK-PLA

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confer with the Designating Party. Local Civil Rule 37-1 shall govern the meetand-confer process.

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c.

If the Parties, or the Party and Third Party, cannot reach

agreement concerning the matter, the Receiving Party seeking such removal may
submit to the Court for ruling a noticed motion to be relieved entirely or in part
from the provisions of this Protective Order. The noticed motion shall be made in
accordance with Local Civil Rule 37. The designated material shall continue to be
treated in accordance with the original designation until the issue is resolved by
Order of this Court or by agreement of the Parties, or the Party and Third Party.
23.

No Waiver By Failure To Challenge Designation. For purposes of

the Action or any other action, no Party concedes that any Protected Material
designated by any other person does in fact contain or reflect trade secrets or
proprietary or confidential information. A Party shall not be obligated to challenge
the propriety of the designation of Protected Material at the time made, and failure
to do so shall not preclude a subsequent challenge, within the discovery deadline
established by the District Judge.
24.

Inadvertent Disclosure Of Protected Material. The failure by a

Designating Party to designate specific documents or materials as Protected
Material shall not, by itself, be deemed a waiver in whole or in part of a claim of
confidentiality as to such documents or materials. Upon written notice to the
Receiving Party of such failure to designate, or of incorrect designation, the
Receiving Party shall cooperate to retrieve disseminated copies, and restore the
confidentiality of the inadvertently disclosed information beyond those persons
authorized to review such information pursuant to paragraphs 9 and 10, and shall
thereafter take reasonable steps to ensure that the Protected Material is treated in
accordance with the designation. No person or Party shall incur any liability under

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STIPULATED AND [PROPOSED]
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this Protective Order with respect to disclosure that occurred prior to the receipt of
written notice of the mistaken designation.
25.

Disclosure To Designating Party’s Personnel.

Nothing in this

Protective Order shall affect the right of the Designating Party to disclose to its
officers, directors, employees, consultants, or experts, any documents, things, or
information designated by it as Protected Material; such disclosure shall not waive
the protection of this Protective Order and shall not entitle other Parties or their
attorneys to disclose such information, documents, things, or information in violation
of this Order.
26.

Disclosure To Unauthorized Persons. If information subject to this

Protective Order is disclosed to any unauthorized person either through
inadvertence, mistake, or otherwise without authorization by the Designating Party,
or other than in the manner authorized by this Protective Order, the person
responsible for the disclosure shall immediately (a) inform the Designating Party of
all pertinent facts relating to such disclosure, including without limitation, the
name, address, and telephone number of the recipient and his or her employer;
(b) use his or her best efforts to retrieve the disclosed information and all copies
thereof; (c) advise the recipient of the improperly disclosed information, in writing,
of the terms of this Protective Order; (d) make his or her best efforts to require the
recipient to execute an agreement to be bound by the terms of this Protective Order
in the form of the declaration attached to this Protective Order as Exhibit A; and
(e) take all other reasonable steps to prevent further disclosure by or to the
unauthorized person who received the Protected Material.
27.

“Admissibility” Of Protected Material. This Protective Order shall

not constitute a waiver of any Party’s or non-party’s right to object to the
admissibility into evidence of any Protected Material as provided under Federal or
California (if applicable) law.

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STIPULATED AND [PROPOSED]
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CASE NO. 13-CV-06252-JAK-PLA

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28.

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This Protective Order is intended to

provide a mechanism for handling the disclosure or production of confidential
information to which there is no objection other than confidentiality.

The

protection afforded by this Order shall in no way affect a Producing Party’s right to
withhold documents as: (a) privileged under the attorney-client or other privilege,
(b) protected by the work product doctrine, or (c) otherwise exempted from
discovery under Rule 26 of the Federal Rules of Civil Procedure. Additionally, this
Protective Order shall not prejudice the right of a Party to: (a) seek additional
protective treatment for any such information it considers to be very highly
sensitive and that the protections in this Protective Order would be insufficient,
(b) object to the designation of any document or information as “Confidential” or
“Highly Confidential - Attorneys’ Eyes Only,” or (c) seek any modification of or
relief from any provision of this Protective Order, either generally or as to any
particular Protected Material, by properly noticed motion with notice to all Parties
and their respective counsel.

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All Objections Preserved.

29.

Inadvertent Disclosure Of Privileged Information. If, in connection

with the Action, a Producing Party inadvertently discloses information subject to a
claim

of

attorney-client

privilege

or

attorney-work

product

protection

(“Inadvertently Disclosed Information”), the disclosure of the Inadvertently
Disclosed Information will not constitute or be deemed a waiver or forfeiture of any
claim of privilege or work product protection that the Producing Party would
otherwise be entitled to assert with respect to the Inadvertently Disclosed
Information and its subject matter. If a claim of inadvertent disclosure is made by a
Producing Party with respect to Inadvertently Disclosed Information, the Receiving
Party will, within five (5) business days, return or destroy all copies of the
Inadvertently Disclosed Information and certify that all such Inadvertently

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA

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Disclosed Information has been returned or destroyed and not used, directly or
indirectly, beyond the uses authorized by this Protective Order.
30.

Draft Expert Reports And Work Product.

The provisions of

Federal Rule of Civil Procedure 26(b)(4)(B) and (C) that took effect on December
1, 2010, shall govern this Litigation.
31.

Use Of Information Subject To Protective Order.

Use of any

information or documents subject to this Protective Order, including all information
derived there from, shall be restricted to use in this Litigation or any other
proceeding between the Parties (subject to the applicable rules of evidence and
subject to the confidentiality of such materials being maintained) and shall not be
used by anyone subject to the terms of this Protective Order, for any business,
commercial, or competitive purpose. The Parties agree this Court or any Court with
jurisdiction over the unauthorized disclosure may enforce this use restriction.
32.

Meet And Confer. Except for motions for a Temporary Restraining

Order or Injunctive Relief under paragraph 33, prior to filing any motion or
application before the Court to enforce this Protective Order, the moving party shall
notify the other Party(ies) in writing and meet and confer in good faith in an attempt
to resolve their dispute(s). Local Civil Rule 37-1 shall govern the meet-and-confer
process.
33.

Injunctive Relief. In the event anyone violates or threatens to violate

any of the terms of this Protective Order, the Parties and Third Parties agree that the
aggrieved party may apply to the Court to obtain injunctive relief against any such
person violating or threatening to violate any of the terms of this Protective Order,
without obtaining a bond or other undertaking for such relief. In the event the
aggrieved party brings such motion or application, the responding person subject to
the provisions of this Protective Order shall not employ as a defense the claim that
the aggrieved party possesses an adequate remedy at law. The Parties and Third

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STIPULATED AND [PROPOSED]
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Parties shall not use or reveal, directly or indirectly, any information in violation of
this Protective Order. Because of the confidential and proprietary nature of the
information contemplated to be covered by this Protective Order, the Parties and
Third Parties’ agree that legal remedies are inadequate. Therefore, the Parties and
Third Parties stipulate that injunctive relief is an appropriate remedy to prevent any
person from using or disclosing confidential information in violation of this
Protective Order. The Parties and Third Parties waive and release any and all
requirements for a bond or undertaking to support any injunctive relief for
enforcement of this Protective Order.

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34.

Other Actions.

If any Party is (a) subpoenaed in another action,

(b) served with a demand in another action to which it is a Party, or (c) served with
any legal process by one not a party to this action, seeking information or material
which was produced or designated as “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only” by someone other than that Party, the Party shall give
prompt actual written notice, by email or facsimile transmission, to those who
produced and/or designated the Protected Material as “Confidential” or “Highly
Confidential – Attorneys’ Eyes Only” prior to compliance with the subpoena so as
to allow the Producing and/or Designating Parties reasonable time to seek
protection from the relevant court(s). Nothing in this Protective Order shall be
construed as requiring the Party or anyone else covered by this Protective Order to
challenge or appeal any order requiring production of information or material
covered by this Protective Order, or to subject itself to any penalties for
noncompliance with any legal process or order, or to seek any relief from this
Court.
35.

Survival And Final Disposition Of Designated Material.

Final

termination of the Litigation, including exhaustion of appellate remedies, shall not
terminate the limitations on use and disclosure imposed by the Protective Order.

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STIPULATED AND [PROPOSED]
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Upon final termination of the litigation by final judgment (whether by settlement,
trial, or otherwise), including the time for filing and resolution of all appeals, or
within such other period as the Parties may agree upon, and upon written request of
the producing Party, all Protected Material and copies of Protected Material,
including such material in the hands of outside experts or consultants, shall be
delivered to counsel of record for the producing Party of such material. In the
absence of any such written request, any Protected Material shall be destroyed
within sixty (60) calendar days of final termination of the Litigation. In the event
of destruction or return of Protected Material, the Party receiving Protected
Material shall promptly (and within 60 calendar days of final termination of the
Litigation) advise and certify in writing to the Producing Party that all such
Protected Material and any hard or electronic copy has been returned or destroyed.
Any Protected Material filed or lodged with and retained by the Court shall not be
subject to the provisions of this paragraph. Notwithstanding the foregoing, outside
counsel of record may retain copies of briefs and other papers filed with the Court,
deposition transcripts, discovery responses, and attorney work product that contains
or constitutes Protected Material, so long as such briefs and other papers are
maintained in accordance with the provisions of the Protective Order.
36.

Amendment Or Termination Of Protective Order. No part of the

restrictions imposed by this Protective Order may be terminated, except by written
stipulation executed by counsel of record for each Producing Party or by an Order
of this Court for good cause shown. The terms of this Protective Order shall
survive termination of the Action.
37.

Jurisdiction For Enforcement.

The Court retains jurisdiction

subsequent to settlement or entry of judgment to enforce the terms of this Protective
Order. Each person to whom disclosure of any Protected Information is made
agrees to subject himself to the jurisdiction of the Court in which this action is

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pending for the purpose of proceedings relating to the performance under,
compliance with, or violation of this Protective Order.
Dated:
December 27, 2013
COOLEY LLP

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/s/ Mazda K. Antia
MAZDA K. ANTIA

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Attorneys for Plaintiff
ÉCLAT PHARMACEUTICALS, LLC

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Dated:

December 27, 2013

LATHAM & WATKINS LLP

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/s/ Victor Leung
VICTOR LEUNG

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Attorneys for Defendant
APP PHARMACEUTICALS, INC. dba
FRESENIUS KABI USA, LLC

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Dated:

December 27, 2013

MCGUIRE WOODS LLP

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/s/ Sidney Kanazawa
SIDNEY KANAZAWA

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Attorneys for Defendant
WEST-WARD PHARMACEUTICAL
CORP.

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA

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FILER’S ATTESTATION

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Pursuant to Civil Local Rule 5-4.3.4(a)(2)(i), the undersigned attests that all
parties have concurred in the filing of this Stipulation.
Dated:

December 27, 2013

COOLEY LLP

/s/ Mazda K. Antia
MAZDA K. ANTIA
Attorneys for Plaintiff
ÉCLAT PHARMACEUTICALS, LLC

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA

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ORDER

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For good cause shown, pursuant to Rule 26(c) of the Federal Rules of Civil

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Procedure, all discovery and other materials exchanged by the Parties or Third

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Parties, or filed with the Court, in Eclat Pharmaceuticals, LLC v. West-Ward

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Pharmaceutical Corp. et al., Case No. 13-CV-06252-JAK-PLA shall be provided

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subject to the conditions set forth in the foregoing Stipulated Protective Order.

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IT IS SO ORDERED

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Date: January 6, 2014
Hon. Paul L. Abrams
United States Magistrate Judge

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA

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STIPULATION EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT CONCERNING
CONFIDENTIAL INFORMATION

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1.

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initial, last).
2.

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My name is ___________________________________ (first, middle

I live at ____________________________________ (street address),

____________________ (city), ______________ (state) ________________ (zip
code).
3.

I

am

employed

__________________________

as

a/an

(company),

____________________________________

___________________

by

which

at

(street

is

located

address),

____________________ (city), ______________ (state) ________________ (zip
code). Its telephone number is _____________________.
4.

I have read the attached Stipulated Protective Order entered in the

action of Eclat Pharmaceuticals, LLC v. West-Ward Pharmaceutical Corp. et al.,
pending in the Central District of California and bearing Case No. 13-CV-06252JAK-PLA, and a copy of the Stipulated Protective Order has been given to me.
5.

I agree to be bound by the terms of the Stipulated Protective Order,

and agree that any Protected Material, within the meaning of the Stipulated
Protective Order, will be used by me only to assist counsel in connection with the
above-referenced litigation.
6.

I agree that I will not disclose or discuss Protected Material designated

as “Confidential” with anyone other than the persons described in paragraph 9 of
the Stipulated Protective Order.

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STIPULATED AND [PROPOSED]
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CASE NO. 13-CV-06252-JAK-PLA

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7.

I agree that I will not disclose or discuss Protected Material designated

as “Highly Confidential – Attorneys’ Eyes Only” with anyone other than the
persons described in paragraph 10 of the Stipulated Protective Order.
8.

I understand that any disclosure or use of Protected Material in any

manner contrary to the provisions of the Stipulated Protective Order may subject
me to sanctions for contempt of the Court’s Order.
9.

I agree to be subject in personam to the jurisdiction of the Central

District of California in connection with any proceeding relating to the enforcement
of the Stipulated Protective Order.

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I declare under penalty of perjury that the foregoing is true and correct.

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____

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____

(date)

(signature)

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878043 v5/SD

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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER
CASE NO. 13-CV-06252-JAK-PLA