Mahrou Toubian et al v. Boston Scientific Corporation

Filing 37

PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton re Stipulation for Protective Order 35 (See Order for Details) (rh)

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Eva M. Weiler (SBN: 233942)
[e-mail]

Brian Ziska (SBN: 272043)
[e-mail]

SHOOK, HARDY & BACON L.L.P.
Jamboree Center
5 Park Plaza, Suite 1600
Irvine, California 92614-2546
Telephone: [phone]
Facsimile: 949-475-0016
Michael J. Carroll (admitted pro hac vice)
[e-mail]
SHOOK, HARDY & BACON L.L.P
2555 Grand Boulevard
Kansa City, MO 64108
Telephone: [phone]
Facsimile: 816-421-5547
Attorney for Defendant Boston
Scientific Corporation

NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MAHROU TOUBIAN, AN
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INDIVIDUAL; AND
)
KAMRAN TOUBIAN, AN INDIVIDUAL )
)
PLAINTIFFS,
)
)
VS.
)
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BOSTON SCIENTIFIC CORPORATION, )
A DELAWARE CORPORATION; AND )
DOES 1 TO 100, INCLUSIVE,
)
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Defendants.
)
)
)

Case No. CV 14-2954-JFW (VBKx)
Judge: Hon. John F. Walter
Ctrm: 16
[PROPOSED] STIPULATED
PROTECTIVE ORDER
*DISCOVERY MATTER*
[Filed concurrently with Stipulation for
Protective Order]
Complaint Filed: April 8, 2014

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Pursuant to Fed. R. Civ. P. 26(c), the parties have stipulated to and petitioned
the Court to enter the following Stipulated Protective Order. In order to establish
good cause for this Order, to protect the public interest, and to allow for future judicial
review or public challenges, the parties have stipulated to the following facts, and the

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STIPULATED PROTECTIVE ORDER

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

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action may be determined to be subject to this Stipulated Protective Order.

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Businesses such as the Defendant Boston Scientific Corporation (“BSC” or

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“Defendant”) ordinarily maintain the confidentiality of trade secrets and other

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confidential research, development, or commercial information (as those terms are

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used in Fed. R. Civ. P. 26(c)). Such businesses derive a competitive advantage from

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the foregoing information and from the fact that such information is kept confidential.

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In addition, because this case involves the performance of medical devices and the

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provision of medical care, medical records, including those of Plaintiffs Mahrou

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Toubian and Kamran Toubian, are relevant. Many such records include patient-

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identifying information and are otherwise protected from disclosure by the physician-

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patient privilege, HIPAA, or other applicable law. However, some do not, and others

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may be redacted.

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Both Plaintiffs and Defendant have taken reasonable steps to maintain the

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confidentiality of such information as is in their possession, custody, or control.

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There is now pursuant to Court Order, however, a requirement for discovery of certain

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of such information in this action, provided that confidentiality can be preserved. Not

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only may the foregoing information constitute “trade secrets” under state law, the

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information qualifies as “other confidential research, development, or commercial

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information” within the meaning of Fed. R. Civ. P. 26(c), and the Court so finds. In

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addition, the protection of certain information from unnecessary disclosure is

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necessary to protect the privacy of the parties and, under Fed. R. Civ. P. 26(c), is

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necessary to protect them from “annoyance” and “embarrassment.”

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Accordingly, the parties have stipulated and agreed -- and the Court now finds

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that good cause has been shown and therefore orders -- that discovery in this action

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shall be subject to the following restrictions and that the following terms and

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conditions shall govern the treatment of Confidential Information in this proceeding.

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STIPULATED PROTECTIVE ORDER

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1.

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Definitions.
(a)

Confidential Information.

“Confidential Information” refers to

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information, documents, or other material that the designating

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party reasonably and in good faith believes constitutes or reflects

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trade secrets or information whose confidentiality is otherwise

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protectable under applicable law. This includes but is not limited

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to confidential research, development, or commercial information

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

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medical information, private personal information, protected health

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information, tax returns, and other information reasonably sought

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to be kept confidential.

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(b)

and any of its affiliates.

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(c)

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2.

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Designation of Confidential Information. Any party may reasonably

which it may produce as “Confidential” by labeling the document to be so designated
substantially as follows:

“CONFIDENTIAL:

SUBJECT TO PROTECTIVE

ORDER.” Flash drives or disks containing Confidential files or documents may be
delivered in envelopes marked “ALL CONTENTS CONFIDENTIAL: SUBJECT TO
PROTECTIVE ORDER” in which case each and every individual file or document on
such drives or disks shall be deemed to be Confidential Information hereunder.
3.

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“Parties” refers to all parties, both Plaintiffs and

designate any document containing Confidential Information, or any portion thereof,

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Parties.

Defendant, in this civil action.

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Defendant. “Defendant” refers to Boston Scientific Corporation

Use of Confidential Information. Anyone who is provided with access

to Confidential Information under this Order shall use such information solely in
connection with this action, shall keep such information strictly confidential, and shall

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in no way disclose such information, or any portion, summary, abstract, or other

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derivation thereof, to any firm, person, or entity, except as provided in paragraph 4.

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Disclosure of Confidential Information.

Access to Confidential

Information shall be limited to:

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(a)

Attorneys. Attorneys of record for the parties in this civil action

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and other personnel in their law firm(s) (including other attorneys,

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paralegals,

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personnel”)) who require access for the purpose of representing

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any party in this action.

and

other

staff

personnel

(collectively

“staff

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(b)

Named Parties. The named parties in this action.

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(c)

Experts and Consultants. Outside experts or consultants retained

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in connection with this action; however, the retaining party must

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provide notice to Defendant before providing access to

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Confidential Information to that expert or consultant if any such

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expert or consultant is currently or has ever been an employee of or

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consultant to any competitor of Defendant.

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requirement is not intended to include any expert or consultant

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retained in connection with this action who may have, or have had,

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an independent consultant contractor contract with any competitor

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of Defendant, as long as he or she is not currently an employee of

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any such competitor.)

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(d)

(This notice

Witnesses. Witnesses who testify at depositions, hearings, or trial,

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if any such further proceedings occur in this case; however, a party

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must provide notice to Defendant before providing access to

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Confidential Information to that witness if any such witness is

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currently an employee of any competitor of Defendant. (This

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notice requirement is not intended to include any witness who may

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have, or have had, an independent consultant contractor contract

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with any competitor of Defendant, as long as he or she is not

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currently an employee of any such competitor.)

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(e)

Court Reporters and Videographers. Court reporters and

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videographers appearing at depositions, hearings, or trial, if any

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such further proceedings occur in this case.

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(f)

Court. The Court and its personnel, and jurors as necessary for
trial.

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(g)

Appropriate Personnel of any Insurance Company That is

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Providing or That May Provide Coverage in This Litigation. Any

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assigned adjuster or other appropriate personnel of any insurance

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company that is providing or that may provide coverage for any

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claims in this litigation.

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(h)

Other persons. Without the necessity of further Court order, any

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other person who the parties jointly agree may have access to the

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Confidential Information.

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5.

Non-Waiver of Confidentiality or Objection to Production.

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Review of Confidential Information by any person in paragraph 4 above shall not

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waive the confidentiality of that information and shall not waive any objection to

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production of that information.

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6.

Execution of Agreement to Comply with Stipulated Protective

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Order (Attachment A). Each person who is permitted access to any other party’s

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Confidential Information under paragraph 4 shall be provided a copy of this Stipulated

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Protective Order and shall be advised of their obligation to honor the confidentiality of

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the documents designated under this Order. Persons who are provided disclosure of

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confidential information under paragraphs 4(c), (d), and (h) shall, in addition, sign the

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Agreement to Comply with Stipulated Protective Order (“Agreement”) that is attached

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as Attachment A. Any attorney of record in this action who provides such access to

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any such persons under paragraphs 4(c), (d), or (h) shall retain that person’s signed

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Agreement in his or her files during the pendency of this action, and upon request

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shall make the signed Agreement available for inspection by the Court.

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Inadvertent Disclosure of Confidential Information.

The

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inadvertent, unintentional, or in camera disclosure of Confidential Information shall

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not be deemed a waiver, in whole or in part, of any party’s claim of confidentiality.

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Within fifteen (15) days of discovering such inadvertent or unintentional disclosure,

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any party to this Order may advise the other parties that the Confidential Information

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is to be designated as Confidential under the terms of this Order.

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Inadvertent Disclosure of Privileged Information.

In the

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interest of expediting discovery in these proceedings and avoiding unnecessary costs,

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(a) inadvertent or unintentional disclosure in this litigation of privileged information

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and/or work product shall not be deemed a waiver, in whole or in part, of any

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otherwise valid claim of privilege, immunity, or other protection; and (b) failure to

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assert a privilege and/or work product in this litigation as to one document or

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communication shall not be deemed to constitute a waiver, in whole or in part, of the

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privilege, immunity, or other protection as to any other document or communication

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allegedly so protected, even involving the same subject matter.

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inadvertently produced privileged and/or work product documents, upon the recipient

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becoming aware that he or she has received such documents that clearly were

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inadvertently produced, or upon a request made by producing party, the documents

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together with all copies made of them and any notes made from them shall be returned

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forthwith to the party claiming privilege and/or work product immunity. Any party

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may, within five (5) court days after notification of inadvertent disclosure under this

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paragraph, object to the claim of inadvertence by notifying the designating or

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producing party in writing of that objection and specifying the designated or produced

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In the case of

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material to which the objection is made. The parties shall confer within fifteen (15)

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days of service of any written objection.

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designating party shall, within fifteen (15) days of the conference, file and serve a

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motion to resolve the dispute. If a motion is filed, information subject to dispute shall

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be treated consistently with the designating or producing party’s most recent

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designation until further order of this Court.

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9.

If the objection is not resolved, the

Depositions. Any deposition which a party determines will or

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might reasonably include disclosure of Confidential Information shall be attended

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only by those persons entitled to receive such Confidential Information pursuant to

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this Order, but this shall not be construed to allow any such person to attend a

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deposition he or she otherwise would not be allowed to attend. During a deposition,

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any party may ask the reporter to designate certain portions of the testimony as

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Confidential, in which case the Confidential portions shall be separately transcribed

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and labeled as Confidential. In addition, within thirty (30) days after a copy of the

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transcript taken at the deposition is delivered to the parties, counsel may designate the

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entirety or any specified portion of the transcript or exhibits thereto as Confidential by

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letter to the opposing party. Until such thirty-day period expires, the entirety of such

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transcripts and all exhibits thereto shall be treated as Confidential and subject to this

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Order. After such thirty-day period expires, such transcripts, exhibits, or portions

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thereof designated as Confidential shall be treated as such under this Order. If no such

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designation is made within thirty days, such transcripts or exhibits shall not be subject

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to this Order, except for good cause shown by the designating party.

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10.

Filing with Court.

In filing materials with the Court in pretrial

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proceedings, counsel shall file under seal only those specific documents and that

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deposition testimony designated as Confidential, and only those specific portions of

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briefs, applications, and other filings that either contain verbatim Confidential

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Information or set forth the substance of such Confidential Information. In the event

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any specific documents or deposition testimony designated as Confidential are

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included with or in any way disclosed in any pleading, motion, deposition transcript or

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other paper filed with the Court, such Confidential Information shall be filed under

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seal, pursuant to the applicable procedures required by the Court’s Standing Order

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(Docket No. 6 at 14-17). The Court retains the power, either upon motion of any

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interested party or on its own motion, to determine whether materials filed under seal

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shall remain sealed. Any such Confidential Information that is filed under seal shall be

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done so in a sealed envelope (or other sealed container) marked with the title of this

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action, the title of each such transcript or document being filed, and a statement

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substantially in the following form:

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CONFIDENTIAL

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Pursuant to the Order of the Court dated _______, 2014, this
envelope containing the above-entitled transcripts or
documents filed by [the name of the party], is not to be
opened nor the contents thereof displayed or revealed,
except in accordance with an Order of the Court.

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Objection to Designation. If any party to the litigation disputes

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the designation of any document or information as Confidential Information, before

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seeking the assistance of the Court, the parties must first confer in good faith in an

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attempt to resolve the question of whether or on what terms the document or

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information is entitled to Confidential treatment.

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Confidential designation shall notify the designating party, and the designating party

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shall respond within ten (10) days. If the parties are unable to agree as to whether the

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document or information is properly designated as Confidential Information, the party

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objecting to the designation may file an appropriate motion with the Court. The

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burden of proving the propriety of the designation rests on the party who has made the

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The party objecting to the

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designation. Until a resolution of the dispute is achieved either through consent or

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Court Order, the parties shall treat the designated document or information as

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Confidential Information.

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Return of Confidential Information Upon Termination. Upon

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the termination of this action, whether by Court order, judgment, settlement, or

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otherwise, including the termination of any appeals, each party will return to the other

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all documents designated as Confidential and all copies or reproductions of such

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documents designated as Confidential. The return of Confidential materials shall be

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completed within thirty (30) days after termination of this civil action. Any attorney

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of record in this action who provides access to Confidential Information to any expert,

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consultant, witness, or other person defined in paragraphs 4(c), (d), or (h) is

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responsible for the retrieval from any such expert, consultant, witness, or other person

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of all documents designated as Confidential and for the return of all documents

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designated Confidential; and the work product prepared by any such expert,

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consultant, witness, or other person derived from that Confidential Information shall

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be destroyed and/or returned to that attorney of record.

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communications, or other work product of attorneys, parties, and insurers relating to

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confidential information shall be destroyed and/or kept confidential upon the

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termination of this action.

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obligation to keep Confidential Information confidential, shall survive the final

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termination of this action.

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13.

All correspondence,

This Order, the jurisdiction of this Court, and the

Request to Produce Confidential Information by Subpoena or

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Otherwise. If any party who has received Confidential Information is asked to

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produce such information, by subpoena or otherwise, for purposes of use in a separate

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legal action, the party receiving such a request shall promptly inform the producing

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party that such request has been received and shall object to such request on the basis

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of this Order.

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14.

Waiver of Privilege and Admissibility. Nothing in this Order

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shall be deemed a waiver of any type of privilege applicable to any document or type

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of information in this or any other action or proceeding. Nothing in this Order shall

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be construed to affect the evidentiary admissibility of any Confidential Information.

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Use of Documents Acquired Lawfully or Through Other

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Litigation. This Order shall not prevent any persons bound hereby from making use

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of any document or information without the restrictions of this Order if the document

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or information came into their possession lawfully and if the document or information

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or envelope was not designated “Confidential” and/or subject to a protective order or

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other restrictive court order in another legal action, or where there has been a final

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judgment (including any appeal therefrom) where the document or information was

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deemed to not be confidential.

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Non-Party’s

Confidential

Information.

Any

non-party

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producing discovery material or giving deposition testimony in this action may avail

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herself, himself, or itself of the confidential treatment provided for in this Order for

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her, his, or its discovery material or testimony by following the procedures provided

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herein. This Order shall be binding on such non-parties unless they object to its terms

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within ten (10) days of service upon them of this Order.

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This Order shall not prevent any party from

applying to the Court for modification of the Order or for further relief.

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Modification.

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Failure to Comply. Failure to comply with this Order shall be a

basis for monetary sanctions or other appropriate relief.

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Subtitles.

The subtitles in this Order have been provided for

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convenience only and are not to be considered in construing or interpreting the

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meaning of this Order.

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SO ORDERED: Parties are to comply with LR 79-5 as to filings under seal.
Dated: June 13, 2014

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___________/s/____________________________
The Honorable Victor B. Kenton
U.S. MAGISTRATE JUDGE

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Attachment A

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Eva M. Weiler (SBN: 233942)
[e-mail]
Brian Ziska (SBN: 272043)
[e-mail]
SHOOK, HARDY & BACON L.L.P.
Jamboree Center
5 Park Plaza, Suite 1600
Irvine, California 92614-2546
Telephone: [phone]
Facsimile: 949-475-0016
Attorneys for Defendant Boston
Scientific Corporation

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MAHROU TOUBIAN, AN
)
INDIVIDUAL; AND
)
KAMRAN TOUBIAN, AN INDIVIDUAL )
)
PLAINTIFFS,
)
)
VS.
)
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BOSTON SCIENTIFIC CORPORATION, )
A DELAWARE CORPORATION; AND )
DOES 1 TO 100, INCLUSIVE,
)
)
Defendants.
)
)
)
UNITED STATES DISTRICT COURT

Case No. CV 14-2954-JFW (VBKx)
AGREEMENT TO COPLY WITH
STIPULATED PROTECTIVE
ORDER
[Filed concurrently with Stipulation for
Protective Order]
Complaint Filed: April 8, 2014

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I hereby acknowledge and affirm that I have read the terms and conditions of the

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Stipulated Protective Order entered by the Court in this action. I understand the terms of the

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Court’s Order and under oath consent to be bound by the terms of that Order as a condition

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to being provided access to Confidential Information (including documents and discovery)

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furnished by the parties.

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Stipulated Protective Order, I hereby consent to the jurisdiction of the above-captioned Court

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for the special and limited purpose of enforcing the terms of the Stipulated Protective Order.

Furthermore, by executing this Agreement to Comply with

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(NAME)

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(ADDRESS

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(CITY)

(STATE)

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(ZIP)

(TELEPHONE NUMBER)

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STATE OF

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COUNTY OF

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) ss.
)

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Subscribed and sworn to, before me a Notary Public, this _______ day of
____________________, 201__.

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(SEAL)

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Notary Public

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Typed or Printed Name

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