Jeffery John Hughes et al v. Olympus America, Inc. et al

Filing 30

PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 29 . See order for details. (hr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

10
11
12
13
14
15
16
17
18

JEFFERY JOHN HUGHES, individually
and as successor-in-interest for decedent
JEFFERY HUGHES, and ANNIE
RUTH HUGHES, individually and as
successor-in-Interest for decedent
JEFFERY HUGHES,
Plaintiffs,
v.

CASE NO. 2:15-cv-02103-BRO-JC

STIPULATED PROTECTIVE
ORDER
[DISCOVERY MATTER]

OLYMPUS AMERICA, INC.;
OLYMPUS CORPORATION OF THE
AMERICAS; and OLYMPUS
MEDICAL SYSTEM CORP.;

19

Defendants.

20
21
22
23
24
25
26
27
28
DLA P IPER LLP (US)

PROTECTIVE ORDER

SAN DIEGO

WEST\267019212.1

1
2
3
4
5
6

The Court, being informed that discovery in this action is likely to involve
production of confidential, proprietary, or private information for which special
protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted, and pursuant to a joint motion by the
parties, enters the following Protective Order:
1.

7
8
9
10
11
12
13
14

This Order does not confer blanket protections on all disclosures or responses
to discovery. The protection it affords from public disclosure and use extends only
to the limited information or items that are entitled to confidential treatment under
the applicable legal principles. Further, as set forth in Section 12.3, below, this
Protective Order does not entitle the parties to file confidential information under
seal. Rather, when the parties seek permission from the court to file material under
seal, the parties must comply with Civil Local Rule 79-5 and with any pertinent
orders of the assigned District Judge and Magistrate Judge.

15

B. GOOD CAUSE STATEMENT

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

A. PURPOSES AND LIMITATIONS

In light of the nature of the claims and allegations in this case and the parties’
representations that discovery in this case will involve the production of
confidential records, and in order to expedite the flow of information, to facilitate
the prompt resolution of disputes over confidentiality of discovery materials, to
adequately protect information the parties are entitled to keep confidential, to
ensure that the parties are permitted reasonable necessary uses of such material in
connection with this action, to address their handling of such material at the end of
the litigation, and to serve the ends of justice, a protective order for such
information is justified in this matter. The parties shall not designate any
information/documents as confidential without a good faith belief that such
information/documents have been maintained in a confidential, non-public manner,
///

28
-2-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2
3

and that there is good cause or a compelling reason why it should not be part of the
public record of this case.
2.

4
5

2.1

2.2

10
11
12
13
14

2.3

in this litigation which is designated confidential and which qualifies for protection
under Federal Rule of Civil Procedure 26(c), including, but not limited to, health or
medical information, personal financial data, proprietary business information
and/or trade secret information, and as specified above in the Good Cause
Statement.
2.4

19

2.5

22
23

“CONFIDENTIAL.”
2.6

26
27

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in disclosures or responses to discovery in this matter.

24
25

Designating Party: a Party or Non-Party that designates information or

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

20
21

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).

17
18

“CONFIDENTIAL” Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things disclosed or produced

15
16

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.

8
9

Action: The instant action: Hughes v. Olympus America Inc., et al.,

Case No. 2:15-cv-02103-BRO-JC.

6
7

DEFINITIONS

2.7

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this Action.
///

28
-3-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2
3

2.8

House Counsel does not include Outside Counsel of Record or any other outside
counsel.

4
5

2.9

8
9

2.10 Outside Counsel of Record: attorneys who are not employees of a
party to this Action but are retained to represent or advise a party to this Action and
have appeared in this Action on behalf of that party or are affiliated with a law firm
which has appeared on behalf of that party, and includes support staff.

10
11
12

2.11 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).

13
14

2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

15
16
17
18

2.13 Professional Vendors:

demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.14 Protected Material:

23
24
25
26
27

any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”

21
22

persons or entities that provide litigation

support services (e.g., photocopying, videotaping, translating, preparing exhibits or

19
20

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.

6
7

House Counsel: attorneys who are employees of a party to this Action.

2.15 Receiving Party:

a Party that receives Disclosure or Discovery

Material from a Producing Party.
3.

SCOPE
The protections conferred by this Order cover not only Protected Material (as

defined above), but also (1) any information copied or extracted from Protected
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
and (3) any deposition testimony, conversations, or presentations by Parties or their

28
-4-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2

Counsel that might reveal Protected Material, other than during a court hearing or at
trial.

3
4
5
6

Any use of Protected Material during a court hearing or at trial shall be
governed by the orders of the presiding judge. This Order does not govern the use
of Protected Material during a court hearing or at trial.
4.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

DURATION
Except with respect to those documents and information that become a

matter of public record, even after final disposition of this litigation, the
confidentiality obligations imposed by this Order shall remain in effect until a
Designating Party agrees otherwise in writing or a court order otherwise directs.
Final disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this Action, with or without prejudice; and (2) final judgment herein
after the completion and exhaustion of all appeals, rehearings, remands, trials, or
reviews of this Action, including the time limits for filing any motions or
applications for extension of time pursuant to applicable law. This Court retains
and shall have continuing jurisdiction over the parties and recipients of the
“Confidential” information for enforcement of the provisions of this Order
following termination of this litigation.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items, or oral or written
communications that qualify so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order.

28
-5-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

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

Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to
impose unnecessary expenses and burdens on other parties) may expose the
Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
under this Order must be clearly so designated before the material is disclosed or
produced.
Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

documents, but excluding transcripts of depositions), that the Producing Party affix
at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL
legend”), to each page that contains protected material. If only a portion or portions
of the material on a page qualifies for protection, the Producing Party also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in
the margins).
A Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has indicated
which documents it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must determine

28
-6-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2
3
4
5
6

which documents, or portions thereof, qualify for protection under this Order. Then,
before producing the specified documents, the Producing Party must affix the
“CONFIDENTIAL legend” to each page that contains Protected Material. If only a
portion or portions of the material on a page qualifies for protection, the Producing
Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).

7
8

(b)

identifies on the record, before the close of the deposition as protected testimony.

9
10
11
12
13
14

(c) for information produced in some form other than documentary and
for any other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information is stored the
legend “CONFIDENTIAL.” If only a portion or portions of the information
warrants protection, the Producing Party, to the extent practicable, shall identify the
protected portion(s).

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

for testimony given in depositions that the Designating Party

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such
material. Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Any Party or Non-Party may challenge a

designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-1 et seq.

27
28
-7-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

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

6.3

The burden of persuasion in any such challenge proceeding shall be on

the Designating Party. Frivolous challenges, and those made for an improper
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. Unless the Designating
Party has waived or withdrawn the confidentiality designation, all parties shall
continue to afford the material in question the level of protection to which it is
entitled under the Producing Party’s designation until the Court rules on the
challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending, or attempting to settle this Action. A
Receiving Party shall not under any circumstances sell, offer for sale, advertise, or
publicize Protected Material. Such Protected Material may be disclosed only to the
categories of persons and under the conditions described in this Order. When the
Action has been terminated, a Receiving Party must comply with the provisions of
Section 13 below.
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving

Party

may

disclose

any

information

or

item

designated

“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
well as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this Action;

28
-8-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2

(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;

3
4
5

(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);

6

(d) the court and its personnel;

7

(e) court reporters and their staff;

8
9
10

(f) professional jury or trial consultants, mock jurors, and Professional
Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

11
12

(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;

13
14
15
16
17
18
19
20
21
22

(h) during their depositions, witnesses, and attorneys for witnesses, in the
Action to whom disclosure is reasonably necessary provided: (1) the deposing
party requests that the witness sign the “Acknowledgment and Agreement to Be
Bound” form attached as Exhibit A hereto; and (2) they will not be permitted to
keep any confidential information unless they sign the “Acknowledgment and
Agreement to Be Bound” attached as Exhibit A, unless otherwise agreed by the
Designating Party or ordered by the court.

testimony or exhibits to depositions that reveal Protected Material may be
separately bound by the court reporter and may not be disclosed to anyone except
as permitted under this Protective Order; and

23
24
25
26
27

Pages of transcribed deposition

(i) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
///
///
///

28
-9-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1

8.

2

IN OTHER LITIGATION

3
4
5

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:

6
7

(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order unless prohibited by law;

8
9
10
11

(b) promptly notify in writing the party who caused the subpoena or order
to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order.
include a copy of this Protective Order; and

12
13

(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

14
15
16
17
18
19
20
21
22
23
24
25
26
27

Such notification shall

If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party’s
permission, or unless otherwise required by the law or court order.

The

Designating Party shall bear the burden and expense of seeking protection in that
court of its confidential material and nothing in these provisions should be
construed as authorizing or encouraging a Receiving Party in this Action to disobey
a lawful directive from another court.
9.

A

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the

28
-10-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2

remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.

3
4
5
6

(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:

7
8
9

(1) promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;

10
11
12

(2) promptly provide the Non-Party with a copy of the Protective
Order in this Action, the relevant discovery request(s), and a reasonably specific
description of the information requested; and

13
14

(3) make the information requested available for inspection by the
Non-Party, if requested.

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

(c) If a Non-Party represented by counsel fails to commence the process
called for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the
notice and accompanying information or fails contemporaneously to notify the
Receiving Party that it has done so, the Receiving Party may produce the NonParty’s confidential information responsive to the discovery request.

If an

unrepresented Non-Party fails to seek a protective order from this court within 14
days of receiving the notice and accompanying information, the Receiving Party
may produce the Non-Party’s confidential information responsive to the discovery
request. If the Non-Party timely seeks a protective order, the Receiving Party shall
not produce any information in its possession or control that is subject to the
confidentiality agreement with the Non-Party before a determination by the court
unless otherwise required by the law or court order. Absent a court order to the
///

28
-11-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2
3

contrary, the Non-Party shall bear the burden and expense of seeking protection in
this court of its Protected Material.
10.

4
5
6
7
8
9
10
11
12

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party must immediately (a) notify in writing the
Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material, (c) inform the person or persons
to whom unauthorized disclosures were made of all the terms of this Order, and (d)
request such person or persons to execute the “Acknowledgment and Agreement to
Be Bound” that is attached hereto as Exhibit A.
11.

13

16
17
18
19
20
21
22
23
24
25
26

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

14
15

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement into this Protective
Order.
12.

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.

27
28
-12-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2
3
4
5

12.2 Right to Assert Other Objections. No Party waives any right it
otherwise would have to object to disclosing or producing any information or item
on any ground not addressed in this Protective Order. Similarly, no Party waives
any right to object on any ground to use in evidence of any of the material covered
by this Protective Order.

6
7
8
9
10
11

12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5 and with any pertinent
orders of the assigned District Judge and Magistrate Judge. If a Party's request to
file Protected Material under seal is denied by the court, then the Receiving Party
may file the information in the public record unless otherwise instructed by the
court.

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

12.4 Binding Nature of Order. This Order shall be binding upon the parties
and their attorneys, successors, executors, personal representatives, administrators,
heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents,
independent contractors, or other persons or organizations over which they have
control.
13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in Section 4, within 60

days of a written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy such material. As
used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the Producing Party (and, if
not the same person or entity, to the Designating Party) by the 60 day deadline that
(1) identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed and (2) affirms that the Receiving Party has not retained any

28
-13-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2
3
4
5
6
7
8
9
10
11
12
13
14

copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel
are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition
and trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this Protective
Order as set forth in Section 4. Attorney work product may be used in subsequent
litigation provided that such use does not disclose “Confidential” documents or any
information contained therein.
14.

VIOLATION
Any violation of this Order may be punished by any and all appropriate

measures including, without limitation, contempt proceedings and/or monetary
sanctions.

15
16

IT IS SO ORDERED.

17
18

DATED: January 14, 2016

19

____________/s/_____________
Honorable Jacqueline Chooljian
United States Magistrate Judge

20
21
22
23
24
25
26
27
28
-14-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1

1
2

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

I, _____________________________ [print or type full name], of
_________________ [print or type full address], declare under penalty of perjury
that I have read in its entirety and understand the Protective Order that was issued
by the United States District Court for the Central District of California on January
14, 2016 in the case of Jeffery John Hughes, et al. v. Olympus America, Inc., et al.,
Case No. 2:15-cv-02103-BRO-JC. I agree to comply with and to be bound by all
the terms of this Protective Order and I understand and acknowledge that failure to
so comply could expose me to sanctions and punishment in the nature of contempt.
I solemnly promise that I will not disclose in any manner any information or item
that is subject to this Protective Order to any person or entity except in strict
compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court
for the Central District of California for the purpose of enforcing the terms of this
Protective Order, even if such enforcement proceedings occur after termination of
this action. I hereby appoint __________________________ [print or type full
name] of _______________________________________ [print or type full
address and telephone number] as my California agent for service of process in
connection with this action or any proceedings related to enforcement of this
Protective Order.
Date: ______________________________________
City and State where sworn and signed: _________________________________

25
26
27

Printed name: _______________________________
Signature: __________________________________

28
-15-

DLA P IPER LLP (US)
SAN DIEGO

PROTECTIVE ORDER
WEST\267019212.1