James Harraway v. Fresenius SE and CO. KGaA

Filing 42

PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Notice of Lodging 41 . (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JAMES HARRAWAY
v.

Plaintiff,

FRESENIUS MEDICAL CARE
HOLDINGS, INC. dba FRESENIUS
MEDICAL CARE NORTH AMERICA, a
New York corporation,

Case No. 2:14-cv-09469-BRO-JPR
PROTECTIVE ORDER
Judge: Hon. Jean. P. Rosenbluth

Defendant.
AND RELATED COUNTERCLAIMS

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PROTECTIVE ORDER

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Defendant and counterclaimant Fresenius Medical Care Holdings, Inc. dba

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Fresenius Medical Care North America (“FMCNA”), proposes the following Protective

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Order for designation of discovery that may result in the disclosure of highly sensitive

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and confidential information. FMCNA believes that this confidential information

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includes sensitive sales and other financial information, sensitive market studies and

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strategy information, sensitive information regarding the design, structure, function and

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method of operation of FMCNA’s products and other sensitive proprietary information.

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The interest of the party producing such information in restricting the disclosure and use

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of its confidential information described above far outweighs the interest of the public in

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having access to such information. Good cause accordingly exists for entry of this

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Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure in order

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to protect against improper disclosure or use of confidential information produced or

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disclosed in this case.
Based on the reasons stated above, and good cause appearing, IT IS HEREBY

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ORDERED as follows:

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I.

CLASSIFICATOIN OF INFORMATION
1.

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“CONFIDENTIAL INFORMATION” means information, documents,

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or things (including transcripts) that (1) have not been made public, and (2) the

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designating party reasonably and in good faith believes contains or comprises trade

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secrets or other confidential research, development, commercial, or private information

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or documents.

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II.

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PRODUCING AND DESIGNATING INFORMATION
2.

Any party to this action may designate anything as “CONFIDENTIAL

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INFORMATION” if it has a good faith belief that qualifies under Paragraph 1. Any

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non-party producing information in this action may so designate such materials pursuant

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to Paragraphs 21-23 below. Any information produced or disclosed in this action (in

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pretrial discovery, as a deposition transcript or exhibit, in a pleading or otherwise)

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deemed to contain or constitute CONFIDENTIAL INFORMATION shall be so
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designated by any party to this action, or any other supplier of that information, (1) in

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writing by typing, stamping, or affixing conspicuously on its face (in such a manner as

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will not interfere with the legibility thereof) “CONFIDENTIAL INFORMATION” at

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the time of production or service thereof, or (2) orally on the record at a deposition or

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conference. Oral notice shall be effective only for those parties in attendance personally

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or by counsel, or for those parties who receive a transcript containing or marked with a

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confidentiality designation. The designating party shall use due care to designate only

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information that truly merits such designation.

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3.

The introduction of any CONFIDENTIAL INFORMATION into open

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court during the trial or any hearing in this matter shall be governed by pertinent local

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rules of the Court, future orders of the Court or by stipulation between the parties.

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A.

Production of Documents and Things

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4.

The designating party shall mark each affected document or thing with a

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legend stating "CONFIDENTIAL INFORMATION" as appropriate, or a comparable

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notice. Where a document consists of more than one page, at least the first page and

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each page on which confidential information appears shall be so marked. This provision

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shall not apply where it is impractical or infeasible to mark the affected document or

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thing such as in the case of an original that cannot be readily copied. In the event it is

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impractical or infeasible to mark an affected document or thing, the designating party

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shall provide separate written notice.

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5.

If a party inadvertently fails to mark a document that contains confidential

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information with the appropriate designation, it may later apply such a designation by

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providing counsel for each other party written notice of the proper designation for each

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affected document or thing. For purposes of this provision, oral notice recorded by a

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court reporter shall constitute written notice for any party in attendance personally or by

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counsel, or who receives a transcript containing such a notice. Upon receiving such a

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notice, each party shall treat the affected documents or things, and all copies thereof, as

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designated as the notice states, and each receiving party shall make a reasonable effort to
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(1) prevent improper use or disclosure of such information and (2) obtain the return of

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such information that it disclosed to any person not authorized to receive such

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designated information, subject to its right to contest any designation in accordance with

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Paragraph 20 below, and subject to the exceptions in Paragraph 16 below regarding use

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or disclosure of information before receiving notice of any designation. The designating

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party shall also provide a replacement, marked pursuant to Paragraph 4 above, for each

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affected document and thing. After receipt of a marked replacement, and upon written

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request of the designating party, the receiving party shall certify in writing to counsel of

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the designating party that the receiving party has returned or destroyed, at its option,

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every affected unmarked document and thing and all copies thereof.
6.

Until seven (7) days after receipt, the receiving party shall treat all

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documents and things received from a producing party as being CONFIDENTIAL

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INFORMATION, regardless of how such documents or things are marked. After that

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seven-day period, however, documents and things shall be treated in accordance with

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how they are actually designated, if at all, under Paragraphs 1-5 above.

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B.

Production for Inspection

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7.

Any entity that produces documents or things for inspection and copying

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may require within 30 days of the production, inspection, or copying, by written notice

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to the receiving party that, with respect to each document or thing, the document or

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thing shall be (i) treated as if it were designated as “CONFIDENTIAL

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INFORMATION” and (ii) reviewed only by persons whom this Protective Order

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authorizes to receive CONFIDENTIAL INFORMATION, and any copies, summaries,

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excerpts, compilations, notes, or other information obtained or generated during the

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inspection of the document or thing shall be treated as CONFIDENTIAL

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INFORMATION. After designation by the producing party, the documents and things

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shall be treated in accordance with the designation, if any, of the producing party.

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C.

Depositions

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8.

A party may designate deposition transcripts and exhibits as
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“CONFIDENTIAL INFORMATION” (a) orally on the record during the deposition;

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or (b) by notifying all other parties in writing within 30 days of receiving the transcript of

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the exhibits, transcript, or portions thereof, that contain CONFIDENTIAL

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INFORMATION.
9.

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Until thirty (30) days after receiving a deposition transcript, each party shall

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treat the entirety of each deposition transcript, all information disclosed therein, and

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each exhibit thereto as CONFIDENTIAL INFORMATION unless before the

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deposition, the exhibit was properly treated as not having any CONFIDENTIAL

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INFORMATION. After the thirty (30) day period, however, deposition transcripts, all

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information disclosed therein and each exhibit thereto, shall be treated in accordance

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with how they are actually designated.

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D.

Redactions

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10.

Any producing party may redact material from documents and things it

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produces, including matter that the producing party claims is subject to the attorney-

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client privilege, work product immunity or other privilege or immunity. The producing

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party shall mark each document or thing where matter has been redacted with a legend

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stating “REDACTED FOR PRIVILEGE” or a comparable descriptive notice. Where a

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document consists of more than one page, at least the first page and each page on which

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information has been redacted shall be so marked. The producing party shall preserve

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an unredacted version of each document. This provision shall not affect any obligation

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to provide a log of information redacted or otherwise withheld on the basis of the

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attorney-client privilege, work product immunity or other privilege or immunity.

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III.

LIMITATIONS ON USING AND DISCLOSING INFORMATION

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A.

Limitations on Use and Disclosure

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All CONFIDENTIAL INFORMATION produced or exchanged during

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this litigation shall not be disclosed or used except for the purpose of conducting this

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litigation, including any appeal resulting therefrom, and not for any other business,

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commercial or other purpose whatsoever. As an example only, such information shall
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not be used by a recipient for any commercial purpose, for filing, prosecuting or

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opposing any patent application (of any type) or a similar request for protection, for

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patent reissue or reexamination request or for developing a product.

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12.

Anything designated CONFIDENTIAL INFORMATION shall not be

disclosed or made available to any person or entity other than:
a.

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Attorneys of Fish & Richardson, P.C., including necessary clerical

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and support personnel, including third-party litigation support personnel (for example,

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paralegals, data entry personnel, copy services, visual aid providers or jury consultants)

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who are assisting such attorneys. Any outside attorney or law firm other than those

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indicated above may be added to this Protective Order as counsel of record for a party

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upon ten (10) days advance written notice to all other parties, but shall not be added to

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the Protective Order nor entitled to access to any CONFIDENTIAL INFORMATION

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should any other party object in writing to the designation of counsel during such ten

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(10) day period; any such objection shall be resolved by the Court if not resolved among

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the parties;

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b.

Plaintiff and counterclaim defendant Mr. James Harraway, and Stacy

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Blasberg and Jay Morris, in-house counsel for FMCNA, along with their respective in-

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house paralegal and clerical support staff who are directly involved in the litigation,

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subject to the following restrictions:
(i)

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Notwithstanding the foregoing, the in-house counsel

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identified in the preceding Paragraph 12(b) shall not have access to view or

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search any document database storing documents produced by the

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opposing party or any non-party in this action;

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c.

Outside experts, consultants, and mock jurors who are specifically

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retained by a party to this action for purposes of this litigation and who are not

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otherwise currently employed by (1) a party, or (2) any predecessor, parent or affiliated

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company of a party, and all necessary clerical and support personnel who assist such

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experts or consultants, subject to the provisions regarding designating persons under this
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PROTECTIVE ORDER

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Protective Order in Paragraph 18 below;
d.

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The Court and any persons the Court employs whose duties require

access to the information, including jurors and court reporters; and
e.

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Officers before whom a deposition or other testimony is taken

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(including without limitation, stenographic reporters and videographers) and necessary

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clerical and support personnel who are assisting such officers, who are provided a copy

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of this Protective Order and advised that confidential information disclosed to them may

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not be used in any manner other than with respect to this action.

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B.

Filing Under Seal

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13.

Any discovery related issues filed with or submitted to the Court (including

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without limitation, pleadings, motions, transcripts or portions thereof) that comprises,

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contains, discloses, reproduces or paraphrases any information that is designated

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“CONFIDENTIAL INFORMATION” shall be filed under seal in accordance with the

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Civil Case Procedures of Judge Rosenbluth and the Local Rules of this Court.

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14.

No document shall be filed under seal unless counsel secures a court order

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allowing the filing of a document, or portion thereof, under seal. An application to file a

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document under seal shall be served on opposing counsel and on all unrepresented

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parties personally. If opposing counsel or an unrepresented party wishes to oppose the

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application, he/she must contact the Court Room Deputy of the judge who will rule on

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the application to notify the Court that an opposition to the application will be filed.

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C.

Depositions

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15.

No person shall attend portions of depositions during which information

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designated as “CONFIDENTIAL INFORMATION” is disclosed unless such person is

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an authorized recipient of such information under this Protective Order. If, during a

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deposition, the response to a question would require the disclosure of

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CONFIDENTIAL INFORMATION, the witness may refuse to answer or complete his

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or her answer, or any party that designated the information as confidential may instruct

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the witness not to answer or complete his or her answer, until any persons not
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authorized to receive that information have left the room. If the persons not authorized

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to receive confidential information refuse to leave the room, the deposition shall

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continue as to non-confidential matters only or may be adjourned, at the option of the

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examining party. Each party reserves its right to demand the suspension of the taking of

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the deposition under Rule 30(d).

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D.

Exceptions

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16.

Nothing in this Protective Order shall prohibit or otherwise restrict the use

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or disclosure of information, documents or things, if, at the time of such use or

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disclosure:
a.

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A party is merely using or disclosing its own information. A party

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may freely use and disclose its own CONFIDENTIAL INFORMATION without

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restriction;

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b.

The Court has ordered such use or disclosure, or the Court has

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ordered the relevant information undesignated. If the Court orders such use or

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disclosure, then unless the Court orders otherwise, the information, and any entity

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receiving any such information, shall otherwise be subject to this Protective Order;

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c.

Each party that produced the information or designated the

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information as “CONFIDENTIAL INFORMATION” has consented in writing to such

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use or disclosure;

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d.

The information is used or disclosed in the examination, at a

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deposition hearing, or trial, of any current or former officer, director, employee, agent,

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expert or consultant of the party whose information is used or disclosed, so long as that

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person had access or knowledge of the information;

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e.

The person or entity receiving the information wrote, was the source

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for, or lawfully previously received that information. Counsel may examine a witness in

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a good faith effort to determine whether that person had access to or knowledge of the

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information, provided that such examination be undertaken without the disclosure of

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the substance of such confidential information to the witness unless and until counsel
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has determined, in good faith, from such examination that the witness did, in fact, have

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lawful access to such information prior to this litigation;
f.

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The information (1) was part of the public domain or publicly

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available when it was produced, or (2) becomes part of the public domain or publicly

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available through no act, omission or fault of any receiving party or its counsel or agents,

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and through no unlawful or improper act of any other person;
g.

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The information is or was independently developed, prior to receipt

in this litigation, by the party wishing to use or disclose the information; or
h.

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The information (1) is or was in the lawful possession of the party

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wishing to use or disclose the information, and (2) was not acquired under any obligation

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of confidentiality to the designating party, nor through the illegal act of any person.
17.

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Notwithstanding any provision of this Protective Order, nothing in this

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Protective Order shall prohibit or otherwise restrict counsel from referring to in a very

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general way, relying on, or evaluating CONFIDENTIAL INFORMATION in the

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course of advising a party client with respect to this litigation, provided, however, that

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counsel shall not disclose the specific substance or content of any CONFIDENTIAL

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INFORMATION if such disclosure would violate this Protective Order.

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IV.

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DESIGNATING PERSONS UNDER THE PROTECTIVE ORDER
18.

The parties may in good faith disclose “CONFIDENTIAL

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INFORMATION” to mock jurors and jury consultants under the Protective Order

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provided such persons (i) execute a general confidentiality agreement; (ii) are not actually

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provided any copies or excerpts of materials designated “CONFIDENTIAL

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INFORMATION”; and (iii) return all notes or testing instruments upon conclusion of

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the exercise. Confidential Business Information designated “CONFIDENTIAL

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INFORMATION” shall not otherwise be disclosed by the receiving party to its

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independent technical, damages, or other consultants retained for purposes of this

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litigation and their necessary employees until the procedures in subparagraphs (a)

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through (d) are followed:
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a.

At least ten (10) days before the designated Confidential Information

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is to be disclosed to any independent expert or consultant or employees thereof, the

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party wishing to disclose such information shall provide to the opposing party:
(i)

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and a current copy of the person’s curriculum vitae;
(ii)

The names of any employees who will be assisting the

(iii)

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The person’s name, business address, present employer

An agreement, in the form attached hereto as Exhibit

person; and

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A, from each person and each employee identified in Paragraph (ii) that

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they have read this Protective Order and agree to be bound by all of the

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provisions hereof and to be subject to the jurisdiction of this Court for

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enforcement.

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b.

Unless counsel of record for any party notifies proposing counsel of

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its objection to any person proposed hereunder within ten (10) days after receipt of the

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information referred to in Paragraph 18(a) above, such person(s) shall thereafter be

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entitled to receive CONFIDENTIAL INFORMATION pursuant to the provisions of

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this Protective Order.

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c.

Should counsel of record notify proposing counsel of its objection

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to any person proposed hereunder, the parties shall meet and confer within 10 days of

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any such objection. If the meet and confer is unsuccessful, the party objecting to the

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disclosure to the expert will have 21 days from the date of its written objection to file a

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motion, in compliance with Local Rule 37 if applicable, seeking relief from the Court,

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provided, however, that no information designated as “CONFIDENTIAL

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INFORMATION” may be disclosed to any person as to whom an objection has been

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made until the motion is decided by the Court or by an appellate court, should appellate

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review be sought. If relief is not sought from the Court within 21 days following the

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written objection, the objection shall be deemed withdrawn. In any such proceeding, the

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party opposing disclosure to the expert shall bear the burden of proving that the risk of
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harm that the disclosure would entail (under the safeguards proposed) outweighs the

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Receiving Party’s need to disclose the protected material to its expert.
d.

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Each party agrees that it will not contact any consultant or employee

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thereof of the opposing party whose identity is revealed under this paragraph, provided,

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however, that the parties may take discovery of “any witness who has been identified as

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an expert whose opinions may be presented at trial.” Fed. R. Civ. P. 26(b)(4).
19.

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Counsel for any Receiving Party who discloses information designated

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“CONFIDENTIAL INFORMATION” to any person who is authorized to receive

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such information, shall be responsible for obtaining and keeping a copy of an executed

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agreement for each such person, as required by Paragraph 18 above.

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V.

DISPUTES REGARDING DESIGNATIONS
20.

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Any party to this action may contest at any time the designation of anything

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as “CONFIDENTIAL INFORMATION” by giving the designating party written

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notice that identifies the relevant designated information and states in reasonable detail

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the reasons why the information should not be so designated. Any parties in

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disagreement about such designations shall meet and confer in compliance with Local

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Rule 37 to attempt to resolve their disagreement. If those parties cannot resolve their

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disagreement within ten (10) days after a party contests the designation, any party may

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thereafter petition the Court to resolve the matter within 30 days after a party contests

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designation. If such an objection or petition is made, such information shall be treated

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according to the designation that the designating party gives it until the issue is resolved

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in writing by the parties or the petition is decided by the Court or an appellate court,

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should appellate review be sought. If no petition is made to the Court within 30 days

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after a party contests designation, the challenge will be deemed withdrawn.

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VI.

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THIRD PARTIES
21.

This Protective Order applies to all information that a non-party discloses

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in connection with this litigation. All information that any non-party designates as

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“CONFIDENTIAL INFORMATION” shall be treated as such in accordance with the
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terms of this Protective Order, subject to any party’s rights to contest any designation in

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accordance with Paragraph 20 above.

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22.

If any person or entity is subpoenaed, ordered by a court of competent

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jurisdiction, or otherwise legally required to produce information that another entity

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designated “CONFIDENTIAL INFORMATION” in this action, the person or entity

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receiving the request or order shall (a) inform each person or entity that sent such

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request or order that the information is subject to this Protective Order, (b) immediately

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notify each designating party of the existence and general substance of each such order

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or request, (c) promptly furnish each designating party with a copy of the document(s) it

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received that memorialized the request or order, and (d) not interfere with any

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designating party’s response or objection to any such order or request.

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23.

Nothing in this Protective Order requires any person or entity to contest,

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appeal, or violate a subpoena, legal process, or court order. If the designating party

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wishes to contest any such request or order, it shall have the burden of doing so. The

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entity receiving the subpoena, process, or order shall be entitled to comply with it unless

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(a) it is quashed or modified in a way that does not require such compliance, or (b) (i) it

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need not be complied with yet, and (ii) the entity receives notice, within ten (10) days

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after it notifies each designating party of the existence of the request or order, that an

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entity has or will contest the request or order.

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VII. WAIVER AND INADVERTANT DISCLOSURES

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If a producing party inadvertently discloses information without

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designating such information as “CONFIDENTIAL INFORMATION,” that disclosure

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shall not be deemed a waiver of confidentiality with regard to that information, or similar

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or related information.

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25.

Neither the existence of this Protective Order, nor the designation of

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anything as “CONFIDENTIAL INFORMATION” shall, in and of itself, raise any

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inference as to whether the designated information is confidential.

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A.

Privilege or Immunity
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26.

Nothing in this Protective Order shall be deemed to waive any applicable

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privilege or immunity, or to limit the relief available to a party claiming that it

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inadvertently disclosed information subject to any privilege or immunity. Nothing in

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this Protective Order shall require disclosure of information that is protected by the

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attorney-client privilege, work product immunity, or other privilege or immunity.

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27.

If any party claims that it has inadvertently disclosed information subject to

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the attorney-client privilege, work product immunity, a legal prohibition against

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disclosure, or other privilege or immunity, such disclosure shall not constitute a waiver

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of the applicable privilege or legal prohibition against disclosure if the producing party

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provides written notice of the inadvertent disclosure to each receiving party within

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twenty (20) days of becoming aware of the inadvertent disclosure. The parties reserve all

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rights to seek the return or destruction of all such information and anything relating to

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such information (including, without limitation, notes or work product), and to preclude

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the further use or disclosure thereof.

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28.

If written notice of inadvertent disclosure is provided within 20 days of the

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party becoming aware of the relevant inadvertent disclosure, then the parties will comply

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with the provisions of Federal Rule of Civil Procedure 26(b)(5)(B). If any receiving party

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disputes that any such information is subject to such privilege or immunity, or otherwise

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disagrees about the return, disclosure (e.g., if the receiving party disputes whether the

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disclosure was inadvertent), or use of any such information, then that party and the party

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claiming inadvertent disclosure shall meet and confer in good faith to attempt to resolve

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their disagreement. If those parties cannot resolve their disagreement within ten (10) day

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s after receipt of such notice, then any of those parties may thereafter petition the Court

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in compliance with Local Rule 37 to resolve the matter. The party seeking to designate

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the information as subject to privilege or immunity shall have the burden of proving that

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the information is subject to privilege or immunity and, if relying on the rule against

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inadvertent waiver under this Protective Order, that the disclosure was inadvertent and

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that written notice was provided within the required 20 days. When written notice of
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inadvertent disclosure is provided within 20 days of the party becoming aware of the

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inadvertent disclosure, the Court will rule on claims of privilege or immunity without

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regard to the fact that such information has been disclosed or used.

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VIII. VIOLATION

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29.

Each person, entity, or third-party who has signed this Protective Order

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that receives any information designated as “CONFIDENTIAL INFORMATION”

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agrees to be subject to the jurisdiction of this Court for the purpose of any proceeding

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relating to the performance under, compliance with, or violation of this Protective

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Order, even after the conclusion of this litigation.

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30.

Each party shall be entitled to all remedies existing under law and equity if

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any information that is designated (at the time of use or disclosure) “CONFIDENTIAL

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INFORMATION” is used or disclosed in violation of this Protective Order, or if any

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term of this Protective Order is violated in any other way. It shall not be a defense to a

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request for injunctive relief that the aggrieved party possesses an adequate remedy at law.

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31.

If any information that is designated (at the time of use or disclosure)

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“CONFIDENTIAL INFORMATION” is used or disclosed other than in the manner

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authorized by this Protective Order, then the party responsible for such use or disclosure

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shall immediately disclose such use or disclosure to counsel of record and each entity

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that supplied or designated the affected information and, without prejudice to other

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rights and remedies available to the supplier or designator, shall make every effort to

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obtain the return of such information and prevent further improper use or disclosure of

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such information. Such disclosure shall include: (a) a description of the confidential

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information used or disclosed (with Bates numbers of any documents involved, if

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known); (b) the date and nature of the use and disclosure; (c) the identity of the

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person(s) who made such use or disclosure and to whom the confidential information

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was disclosed; and (d) a description of the efforts taken to comply with the provisions of

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this paragraph.

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32.

Except as provided for elsewhere in this Protective Order, any disclosure
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or use by any person or entity of any inadvertently disclosed or inadvertently non-

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designated information shall not be deemed a violation of this Protective Order if such

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disclosure or use occurs before that person or entity receives written notice of that

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inadvertent disclosure or non-designation. For purposes of this provision, oral notice

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recorded by a court reporter shall constitute written notice.

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IX.

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CONCLUSION OF LITIGATION
33.

Absent a court order or written permission of the disclosing and

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designating party or parties, and unless otherwise stated in another provision in this

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Protective Order, all provisions of this Protective Order that restrict the disclosure or

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use of information shall continue to be binding after the conclusion of this action.
34.

Upon written request by the disclosing or designating party or parties after

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the conclusion of this litigation and all appeals therefrom, and absent a court order to

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the contrary (a) all documents or things (including transcripts) produced or exchanged in

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this litigation, and all copies thereof, shall be returned to the producing party or

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destroyed; and (b) anything (including, without limitation, exhibits and attorney work

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product) that contains or comprises information designated as “CONFIDENTIAL

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INFORMATION” shall be returned to the producing party or destroyed. Each party or

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entity (including, without limitation, court reporters) that received or has any such

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documents or things, or copies thereof, shall certify in writing to counsel for the

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producing party that it returned or destroyed, at its option, every such document and

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thing, and all copies, summaries and abstracts thereof, in its possession, custody or

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control.

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35.

Notwithstanding Paragraph 34 above, each firm having counsel of record

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may retain for archival purposes one copy of all pleadings, papers filed with the Court,

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written discovery requests, deposition transcripts, transcripts of court proceedings,

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correspondence and work product, including portions designated as

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“CONFIDENTIAL INFORMATION,” subject to the continuing obligations of all

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other provisions of this Protective Order, and provided that nothing in said archival
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Case No. 2:14-cv-09469-BRO-JPR

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copy shall be disclosed to anyone other than that counsel’s partners, associates or

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employees.
36.

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Plaintiff in the above-titled case, who is currently unrepresented by counsel,

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is subject to the requirements of Paragraph 34. To the extent Plaintiff remains

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unrepresented by counsel through the termination of this case, Plaintiff shall have the

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ability, upon reasonable notice, to request inspection of documents maintained pursuant

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to Paragraph 35 by counsel for any other party. If such a request is made, counsel

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receiving the request shall make available to Plaintiff within a reasonable time and at

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counsel’s offices closest to Plaintiff’s residence, documents retained pursuant to

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Paragraph 35. During any such inspection, Plaintiff may not copy any

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“CONFIDENTIAL INFORMATION” and counsel may monitor Plaintiff’s access to

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any such “CONFIDENTIAL INFORMATION.” Counsel need only maintain

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documents and records related to this litigation, including “CONFIDENTIAL

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INFORMATION” pursuant to Paragraph 35 as long as they would in the normal course

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of business.
37.

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The Court retains jurisdiction FOR A PERIOD OF TWO YEARS

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FOLLOWING the final disposition of this litigation to enforce this Protective Order

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and to make such amendments, modifications, deletions and additions to this Protective

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Order as the Court may from time to time deem appropriate. The parties hereto reserve

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all rights to apply to the Court at any time, before or after final disposition, for an order:

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(a) modifying this Protective Order; (b) seeking further protection against discovery or

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other use of confidential information, or documents, transcripts or other materials

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reflecting confidential information; or (c) seeking further production, discovery,

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disclosure or use of claimed confidential information, or documents, transcripts or other

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materials reflecting confidential information.

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X.

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AMENDMENTS
38.

Changes or exceptions to this Protective Order may be made only by

written agreement of the parties subject to court approval, or by court order.
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Case No. 2:14-cv-09469-BRO-JPR

39.

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This Protective Order does not abridge and is without prejudice to the

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rights of a party (a) to oppose or object to the disclosure, production, use or admissibility

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of anything, or to refuse to disclose or produce anything based on any available legal

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grounds or objections, (b) to modify or seek relief from this Protective Order, (c) to seek

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judicial review or other appropriate action regarding any Court ruling concerning

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information that is or was designated “CONFIDENTIAL INFORMATION,” or (d) to

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seek any additional protection that the party deems appropriate.

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XI.

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SOURCE CODE
40.

To the extent any party, or third party to this litigation, produces computer

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source code that it in good faith believes should be subject to rules governing its

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dissemination that are stricter than the provisions of this Protective Order for the

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handling of CONFIDENTIAL INFORMATION, that source code shall be treated as

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follows:

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41.

Any such material shall be produced on password-protected electronic

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media (such as CD-ROM, DVD-ROM, or external hard drive) bearing the designation

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“HIGHLY CONFIDENTIAL – SOURCE CODE.” The producing party shall mark

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the media as “HIGHLY CONFIDENTIAL – SOURCE CODE,” but the producing

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party need not mark the individual files contained in the media with that designation.

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Access to such material shall be subject to additional protections given the particularly

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sensitive nature of the information and shall be limited to outside counsel for the

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receiving parties, to James Harraway alone, but only if James Harraway has not retained

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counsel in this case, and to experts, consultants, and associated personnel pursuant to

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Paragraph 12(c); the Court and associated personnel pursuant to Paragraph 12(d); and

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officers and associated personnel pursuant to Paragraph 12(e). Any third party to this

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litigation that produces source code will be afforded the same rights as the parties to

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oppose disclosure of the third party’s source code. The source code of third parties will

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not be shown to any expert, consultant, or associated personnel pursuant to Paragraph

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12(c) until the third party is given notice (including the information required by
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Case No. 2:14-cv-09469-BRO-JPR

1
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Paragraph 18(a)) and a reasonable opportunity to object.
42.

The copying of media bearing the designation “HIGHLY

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CONFIDENTIAL – SOURCE CODE” shall be strictly limited. The produced

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electronic media shall be copied only to non-networked, stand-alone laptops or desktop

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computers. Plaintiff Harraway and FMCNA will each be limited to a total of three such

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non-networked, stand-alone laptops or desktop computers (for a total of six stand-alone

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computers). This total includes any standalone computers accessible to experts or

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consultants disclosed pursuant to Paragraph 12(c). Access to the stand- alone computers

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shall be restricted by password protection to avoid access by unauthorized individuals.

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The password shall be disclosed only to those individuals authorized to have access to

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“HIGHLY CONFIDENTIAL – SOURCE CODE.” The stand-alone computers shall

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be kept in a secure location that remains locked when not in regular use. The source

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code shall not be copied or transmitted to any computer other than the stand-alone

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computers. Each consultant, expert, or attorney will record on a log every page of

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source code that has been printed (“printed logs”), and identify the purpose of printing

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the pages. Furthermore, the amount of source code printed will be limited only to what

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is necessary for the identified purpose and what is required by the rules of evidence

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relating to completeness. Source code will only be printed for use in depositions, filings

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with the Court, and expert reports. Printed pages of source code cannot be photocopied

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except as copies for depositions, filings with the Court, and expert reports. All printed

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pages shall bear the “HIGHLY CONFIDENTIAL – SOURCE CODE” designation.

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43.

The password-protected stand-alone computers shall be maintained by

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recipients Fish & Richardson P.C. at its offices, at the offices of a third party escrow

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company (to be identified later) experienced in the hosting of confidential electronic

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information and under the conditions set forth above at a location within 35 miles of

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Plaintiff Harraway, or at the offices of experts or consultants disclosed pursuant to

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Paragraph 12(c). The stand-alone computers and any printed code sections

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(appropriately entered in the printed logs) may be transported to the site of any
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PROTECTIVE ORDER

Case No. 2:14-cv-09469-BRO-JPR

1

deposition where testimony relating to the source code is to be solicited, to the Court, or

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between offices of the recipients listed above. Transportation to intermediate locations

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reasonably necessary to bringing the computer and/or the printed code sections to the

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deposition site, Court, or recipient office (e.g., a hotel prior to deposition) shall be

5

permitted.

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44.

Access to documents or notes pertaining to source code created by

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individuals authorized to view “HIGHLY CONFIDENTIAL – SOURCE CODE”

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information shall be limited to persons entitled access to “HIGHLY CONFIDENTIAL

9

– SOURCE CODE” material. Any such documents or notes may reasonably discuss,

10

refer to, and/or reproduce minor portions of the source code but shall not substantially

11

or unreasonably copy or reproduce the source code either in whole or in part.

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45.

No source code or documents describing the source code shall be lodged

13

or filed with the Court except under seal and referencing this Protective Order. If

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required in connection with any motion or other proceedings, additional stand-alone

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computers containing the source code may be used in a courtroom or in chambers.

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46.

At the end of the case, any entity receiving source code will certify that: (a)

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all external media, print-outs, notes regarding any source code, and copies containing

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source code have been destroyed, with the exception of exhibits that were attached to

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filed (sealed) pleadings or admitted into evidence; (b) the hard drives of the stand-alone

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computers have been reformatted; and (c) the print logs have been archived along with

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counsel’s other records from this litigation. Other than set forth in this paragraph,

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counsel may not maintain a file copy of source code material.

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47.

Nothing in this Order shall obligate the parties to produce any particular

24

portion of source code and this Order is not an admission that any particular portion of

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source code is discoverable, relevant, or admissible.

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XII. LIMITATIONS ON EXPERT DISCOVERY

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48.

The parties agree that discovery of expert materials be limited to final

expert reports and materials relied upon in connection with those reports, and that
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Case No. 2:14-cv-09469-BRO-JPR

1

communications with counsel and draft reports not be discoverable.

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IT IS SO ORDERED.

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DATED: December 18, 2015

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Honorable Jean P. Rosenbluth
United States Magistrate Judge

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PROTECTIVE ORDER

Case No. 2:14-cv-09469-BRO-JPR

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EXHIBIT A

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JAMES HARRAWAY
v.

AGREEMENT TO BE BOUND
BY PROTECTIVE ORDER

Plaintiff,

FRESENIUS MEDICAL CARE
HOLDINGS, INC. dba FRESENIUS
MEDICAL CARE NORTH AMERICA, a
New York corporation,
Defendant.

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Case No. 2:14-cv-09469-BRO-JPR

AND RELATED COUNTERCLAIMS

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I, _______________________________, declare and say that:

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1.

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I am employed as ___________________________________________

by _________________________________________________________________.
2.

I have read the Protective Order entered in Harraway v. Fresenius Medical

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Care Holding, Inc. dba Fresenius Medical Care North America, Case No. 2:14-cv-09469-BRO,

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and have received a copy of the Protective Order.

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3.

I promise that I will use any and all information designated

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“CONFIDENTIAL INFORMATION,” as defined in the Protective Order, given to

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me only in a manner authorized by the Protective Order, and only to assist counsel in

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the litigation of this matter.

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4.

I promise that I will not disclose or discuss information designated

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“CONFIDENTIAL INFORMATION” with anyone other than the persons authorized

27

under Paragraph 12 of the Protective Order.

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1
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

Case No. 2:14-cv-09469-BRO-JPR

1

5.

I acknowledge that, by signing this agreement, I am subjecting myself to

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

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with respect to enforcement of the Protective Order.

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6.

I understand that any disclosure or use of information designated

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“CONFIDENTIAL INFORMATION” in any manner contrary to the provisions of the

6

Protective Order may subject me to sanctions for contempt of court.

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

________________

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________________________________

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2

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

Case No. 2:14-cv-09469-BRO-JPR