Rejuvenation Science, Inc., v New Horizon Health, Inc., et al
Filing
43
PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh. (NOTE CHANGES MADE BY THE COURT) This Order does not authorize parties to file documents under seal. Under seal filings are governed by rule 79-5. re Stipulation for Protective Order 37 (sbou)
Case
11
15-cv-02461-BR0-P3" Document 37 Filed 08/26/15 P
? 1 of 14 Page ID #:154
’3
1
MICHAEL A. PAINTER, Bar #43600
oainter(2iikD1aw. corn
2 ISAAC MAN, KAUFMAN & PAINTER
1888 Century Park East, Suite 1500
3 Los Angeles, California 90067
10) 881-6800 - Telephone
4 810 ) 881-6801 - Facsimile
5
6
Attorneys for Plaintiff,
REJUVENATION SCIENCE, INC.
FILED
CU1U1.S. DISTRICT COURT
SEP - II5
CENTRAL DIJOrCLIFORNIA
__DEPUTY
BY
7
8
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
12
13
REJUVENATION SCIENCE, INC., a CASE NO.
California corporation,
CV- 15-2461 -BRO(PJWx)
14
15
Plaintiff,
vs.
16
17
18
19
NEW HORIZON HEALTH, INC., a
California corporation; MARK
MERRIMAN, MD., an individual;
EMERALD BAY ACQUISITIONS,
INC., a Nevada corporation; DOES I X, Inclusive,
JOINT STIPULATED PROTECTIVE
ORDER
2
hAt doe’s flJ1
(JAI
20
Defendants.
21
22
rr
23
24
It is hereby stipulated, by and between plaintiff REJUVENATION
25
SCIENCE, INC., and defendants, NEW HORIZON HEALTH, INC. and MARK
26
MERRIMAN, M.D. to the entry of the following Protective Order pursuant to
27
Federal Rule of Civil Procedure 26(c).
28
MAP-RSI2258
Case ffl:15-cv-02461-BRO-P3" Document 37 Filed 08/26/15 P
2 of 14 Page.ID #:155
1
This action involves claims of trademark infringement (and related claims)
2
against defendants, NEW HORIZON HEALTH, INC. and MARK MERRIMAN,
3
M.D. ("Defendants") by plaintiff, REJUVENATION SCIENCE, INC. ("Plain-
4
tiff"). In connection with the claims and defenses in this case, each party has
5
requested and/or intends to request the discovery of documents and information
6
that is particularly sensitive, confidential and proprietary information relating to
7
customers or suppliers, prices, goods sold, internal operating procedures, internal
8
operating expenses associated with particular goods, operating margins, gross and
9
net profits and the like and the composition of products.
10
Plaintiff and Defendants contend that disclosure of non-public information,
11
such as financial information and details of the composition of products, including
12
but not limited to business plans, marketing plans, financial statements and the
13
terms of any relationship with the customers and suppliers of plaintiff or Defen-
14
dants, to other companies would give those companies a competitive advantage to
15
which they are not lawfully entitled. Plaintiff and Defendants contend they have
16
good cause to protect the confidentiality of their purchases, sales, and operating
17
information from the public and other companies. As this type of confidential
18
sales and operating information is not ordinarily available to other companies,
19
including manufacturers, distributors, customers, and retailers, plaintiff and
20
Defendants contend that this information requires special protection from disclo-
21
sure pursuant to F.R.C.P. 26(c) to the extent relevant to this case.
22
WHEREAS, Plaintiff and Defendants having stipulated to the following
23
provisions herein and having requested that the Court issue a protective order
24
pursuant to Fed. R. Civ. P. 26(c) to protect the confidentiality of confidential,
25
competitively sensitive and/or proprietary information, that may need to be
26
disclosed to adversary parties in connection with discovery in this case; and
27
MAP-RSI-2258
-2-
Case j:15-cv-02461-BRo-PJ\’ ) Document 37. Filed 08/26/15 Pe - 3 of 14 Page ID #:156
I
2
WHEREAS the parties have further consented to the form of this Order and
stipulated that good cause exists for issuance of an appropriately tailored confi-
3 dentiality order governing the pretrial phase of this action;
4
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that any person
5
or party subject to this Order - including without limitation the parties to this
6
action, their representatives, agents, experts and consultants, all third parties
7 providing discovery in this action, and all other interested persons with actual or
8 constructive notice of this Order - shall adhere to the following terms:
1.
9
Form of Information Governed.
10
This Order shall govern any document, information or other thing
11
which is designated as containing "Confidential Information" as defined herein,
12
and is furnished by any party or nonparty to any party in connection with this
13
action.
14
2.
(a)
15
16
Definition of Confidential Information.
The term "Confidential Information" shall be interpreted to
mean financial information, including but not limited to, business plans, marketing
17 plans (including marketing surveys, strategies, performance and projections),
18 financial statements (including budgets, sales or profit projections or reports, profit
19 and loss statements, balance sheets and income statements), the terms of any
20
relationship with the customers or suppliers of a producing party and the composi-
21
tion of the products of Plaintiff and Defendants.
22
(b) The scope of this Order shall be understood to encompass not
23
only those items or things which are expressly designated as Confidential Informa-
24
tion, but also any information derived therefrom, and all copies, excerpts, and
25
summaries thereof, as well as testimony and oral conversation derived therefrom or
26
integrally related thereto. The parties agree to treat as confidential any information
27 produced by a third party if: (i) the third party has marked the documents or things
28
produced as confidential or otherwise designated the information as confidential in
MAP.RSI-2258
-3-
Case915-cv-02461-BRO-PY’ ) Document 37 Filed 08/26/15 P’ 4 of 14 Page ID #:157
1 the manner set forth in this Protective Order; and (ii) the documents or things
2
3
produced fall within the definition of Confidential Information.
3.
(a)
4
5
Designated Material.
In this action, any person or entity or party to this action or
third-party witness (including counsel for the party or witness) (hereinafter the
6 "Designating Person") (i) producing, formally or informally, information or
7
material, including information from the inspection of files, documents, and
8 facilities, and documents obtained or received by counsel for either party pursuant
9 to pretrial discovery in this action from any other party or third-party witness, in
10 response to a discovery request or otherwise, or (ii) lodging with the Court any
11 information or material, may designate such information or material as Confiden12
tial Information under this Order. All such information and material and all
13
information or material derived from any such designated information or material
14
constitutes "Designated Material" under this Order. The form of information
15
protected includes, but is not limited to, documents and things, responses to
16 requests to produce documents or other things, responses to interrogatories,
17 responses to requests for admissions, deposition testimony and exhibits, and all
18 copies, extracts, summaries, compilations, designations and portions thereof.
19
(b) The designation shall be made by marking the material either
20 "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS ONLY," or, in the
21 case of information from the inspection of files, documents, or facilities, by
22
informing the inspecting party that the information is either "CONFIDENTIAL" or
23
"CONFIDENTIAL - ATTORNEYS ONLY" in writing.
24
(c)
The "CONFIDENTIAL - ATTORNEYS ONLY" classifica-
25
tion, being more highly protective of disclosure than the "CONFIDENTIAL"
26
classification, governs information that would materially affect the business,
27 financial, or commercial interests of the person producing such material if such
28 information is disclosed. Types of materials that may be entitled to protection
MAP-RSI-2258
-4-
Case :15-cv-02461-BRO-pj’ Document 37 Filed 08/26/15 P
5 of 14 Page ID #:158
1
under the "CONFIDENTIAL - ATTORNEYS ONLY" designation are limited to,
2
business plans, marketing plans (including marketing surveys, strategies, perfor-
3
mance, and projections), financial statements (including budgets, sales or profit
4
projections or reports, profit and loss statements, balance sheets and income
5
statements), documents that identify the terms of any relationships with the
6
customers or suppliers of a producing party and the composition of the products
7
manufactured and/or sold by the parties.
8
(d) Designation of information or material as "CONFIDENTIAL"
9
or "CONFIDENTIAL - ATTORNEYS ONLY" under this Protective Order shall
10
not create or alter any presumptions of confidentiality.
(e) Whenever only a portion of a document or thing is properly
11
12
deemed "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS ONLY" under
13
this Protective Order, the Designating Person shall, to the extent practicable, limit
14
the designation to such portion of the material.
15
4.
Access.
Designated Material is subject to this Protective Order and shall be
16
17
retained by receiving party’s counsel, and neither the document nor other material
18
so designated, nor the information disclosed therein, shall be disclosed to or used
19
by any non-designating party or other person other than as provided below:
(a) Material designated "CONFIDENTIAL" shall be disclosed only
20
21
to (1) the officers of the parties to this action pursuant to the terms of paragraph (c)
22
below, and (2) those individuals to whom Designated Material may be disclosed
23
under the terms of subparagraphs (b), (c), (e) and (i) below.
(b) Material designated "CONFIDENTIAL - ATTORNEYS
24
25
ONLY" shall be disclosed only to counsel, their legal associates and non-attorney
26
office personnel; and also to a limited number of outside consultants (i.e., persons
27
not an employee of a party), pursuant to subparagraph (c) below. Material desig-
28
nated "CONFIDENTIAL - ATTORNEYS ONLY" specifically may not be
MAP-RSI-2258
moll
Case 215-cv-02461-BRO-PJ") Document 37 Filed 08/26/15
1
PF
6 of 14 Page ID #:159
disclosed to the officers, directors, members and/or employees of parties to this
2 action.
3
(c) Each person in paragraph 4(b) above, other than counsel, and
4 their legal associates and non-attorney office personnel, to whom disclosure may
5
be made by counsel for a non-designating party shall execute the attached Exhibit
6
to Joint Stipulated Protective Order to be delivered beforehand to such Designating
7 Person. Furthermore, outside consultants, in addition to executing the Exhibit to
8
the Joint Stipulated Protective Order, shall, prior to their receipt of any Designated
9 Material, be identified, in the manner set forth below, to the Designating Person.
10 Counsel, the members of their respective law firms, and their employed associates
11 and personnel shall not be required to be identified or to sign the Exhibit to the
12 Joint Stipulated Protective Order, it being understood that they are bound by the
13 terms hereof. The identification of persons under this paragraph shall include the
14 full name, address, past and present employer(s), positions and responsibilities, and
15 a statement concerning any involvement or affiliation, including stock ownership,
16
with the parties to this action or any related corporate entity to a party, or with
17
manufacturers, distributors, or sellers in the vitamins and dietary food supplement
18 industry. The Designating Person shall have seven (7) calendar days from receiv19 ing the required identification to deliver to the notifying party and to serve on all
20
other parties any good faith written objections to such disclosure to the person or
21
persons selected by the counsel for the notifying party; such written objections
22
must provide a detailed explanation of the basis for the objections. Absent timely
23 objection, disclosure by the notifying party to the identified person or persons shall
24 be deemed approved. Upon timely objection, disclosure to the objected-to person
25 or persons shall not be made in order to permit the Designating Person time to
26
move for an order that disclosure not be made to the identified person or persons.
27
If agreement cannot be reached within five (5) days, counsel for the objecting party
28
may seek appropriate relief from the Court in accordance with Local Rule 37 and
MAP-RSI-2258
- 6-
Case
1
:15-cv-02461-BRO-PJ’’ Document 3 Filed 08/26/15 Pr 7 of 14 Page ID #:160
1
the party asserting confidentiality shall have the burden of proving same. There-
2
after all the remaining provisions of Local Rule 37 shall apply and the Designating
3
Person shall set the motion to be heard for the earliest possible date available. If no
4
such motion is made in such time and manner, disclosure by the objecting party to
5
the identified person or persons shall be deemed approved. If such a motion is
6
made, there shall be no disclosure to the identified person or persons until the
7
Court has ruled upon the motion, and then only in accordance with the ruling so
8
made.
(d) Designated Material shall not be used by a recipient thereof or
9
10
disclosed for any purposes other than for litigation of this action.
(e)
11
Court Reporters and Interpreters. Court reporters and inter-
12
preters, who may be present at depositions, shall be presented with a copy of this
13
Protective Order and acknowledge the obligation to be bound by its terms.
(f)
14
Copies. Copies and extracts may be made by or for the fore-
15
going persons, provided that all copies and extracts are appropriately marked. All
16
copies and extracts are subject to paragraph 10 of this Order.
(g) Derivative Documents. Documents created in whole or in part
17
18
with information derived from documents designated under this Protective Order
19
shall be designated in the same manner as the source documents.
(h) Party’s Own Information. The restrictions on the use of Confi-
20
21
dential Information established by this Protective Order are applicable only to the
22
use of Confidential Information received by a party from another party, or from a
23
nonparty who has claimed its disclosure is confidential.
(i)
24
Authors and Addressees. The designation of any document or
25
thing as "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS ONLY" shall
26
not preclude any party from showing the document to any person who appears as
27
an author, addressee or recipient on the face of the document.
28
MAP-RSI-2258
-7--
Case
1
I
:15-cv-02461-BR0-pJ"
5.
Document 37 Filed
08/26/15 Pr y 8 of 14
Page
UD #:161
Designating Documents and Materials.
2
When a party producing documents or things wishes to designate
3
some portion as "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS
4
ONLY," such designation shall be made in the following manner: (1) For docu-
5
ments, by placing an appropriate legend on each page of the document; (2) For
6 tangible objects, by placing a label or tag on the object or the container therefor, or
7 if not practicable, as otherwise agreed; (3) For written discovery responses, by
8 providing any portion thereof containing Confidential Information in a separate
9 document, appended to the main body of the response (appropriately marked in
10 accordance with paragraph 3(b) hereof) and incorporated by reference therein; (4)
11 For declarations or pleadings, in writing in the declaration or pleading and on the
12
face of any such declaration or pleading; (5) For depositions, following the
13
procedure set forth in paragraph 6; and (6) For oral disclosures (other than deposi-
14
tion testimony) which are the subject of paragraph 2(b) above, by oral communica-
15 tion contemporaneous with the disclosure followed by confirmation in writing
16 within fourteen (14) calendar days of the disclosure thereof.
17
6.
Designating Depositions.
(a)
18
Deposition transcripts or portions thereof may be designated as
19 "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS ONLY" by a Desig20
nating Person either: (i) during the deposition, in which case the transcript of the
21
designated testimony shall be transcribed on separate pages and marked by the
22
reporter, as the Designating Person may direct; or (ii) by captioned, written notice
23
to the reporter and all counsel of record, given within thirty (30) days after the
24
reporter sends written notice that the transcript is available for review, in which
25
case the court reporter shall mark the designated portion in the original transcript
26
as though that portion was timely designated during the deposition session.
27
Counsel receiving such notice shall be responsible for destroying any copies of the
28
improperly designated transcript or portion thereof in their possession or control
MAP-RSI-2258
-8 -
Case :15-cv-02461-BRQ-pJr Document 37 Filed 08/26/15
PF
9 of 14 Page ID #:162
upon the availability of the properly designated transcript from the court reporter.
2
Pending expiration of the thirty (30) days under (ii), deposition transcripts and
3
exhibits not previously produced shall be treated as if they had been designated
"CONFIDENTIAL - ATTORNEYS ONLY."
(b) Where testimony is designated at a deposition, the Designating
5
6
Person may exclude from the deposition all persons other than those to whom the
7
Designated Material may be disclosed under paragraph 4 of this Order. The failure
8
of such other persons to comply with a request of this type shall constitute sub-
9
stantial justification for the counsel to advise the witness he need not answer a
10
question seeking the revelation of confidential information.
(c) Any party may mark Designated Material as a deposition
11
12
exhibit and examine any witness thereon, provided that the deposition witness is
13
one to whom the exhibit may be disclosed under paragraph 4 of this Order. In
14
addition, Designated Material may be used by the receiving or non-designating
15
parties in deposing the Designating Person, and in deposing any directors, officers,
16
employees, agents, or attorneys of such Designating Person.
17
7.
Designation Challenges.
A party may challenge any other party’s designation of information or
18
iII materials produced herein as "CONFIDENTIAL" or "CONFIDENTIAL - AT!1I TORNEYS ONLY" by serving a written objection upon the producing party. The
’U producing party shall notify the challenging party in writing of the basis for the
22
asserted designation within ten (10) days after receiving any written objection. If
23
agreement cannot be reached within five (5)) calendar days, counsel for the
24
objecting party may seek appropriate relief from the Court in accordance with
25
Local Rule 37 and the party asserting confidentiality shall have the burden of
26
providing same. Until a dispute over the asserted designation is finally resolved by
27
the parties or the Court, all parties and persons shall treat the information or
28
MAP-RST2258
Case.
I 15-cv-02461-BRO-PR ) Document 37 Filed 08/26/15 PE’ )10 of 14 Page-ID #:163
1
materials in question as designated as "CONFIDENTIAL" or "CONFIDENTIAL -
2
ATTORNEYS ONLY."
8.
3
Court Procedures Under Seal.
Upon the Court’s approval to file documents under seal, the submis-
4
79-5.1. In applications and
5
sions shall then be made in accordance with Local Rule
6
motions to the Court, all submissions of Designated Material shall be filed with the
7
Court in sealed envelopes on which shall be affixed the title of the particular
8
action, the title of the document, the word "CONFIDENTIAL" or "CONFIDEN
9
TIAL - ATTORNEYS ONLY" and a statement substantially in the following
10
-
form:
11
"THIS ENVELOPE CONTAINS MATERIALS SUBJECT TO A
12
PROTECTIVE ORDER ENTERED IN THIS ACTION. IT IS NOT
13
TO BE OPENED NOR ARE ITS CONTENTS TO BE DISPLAYED,
14
REVEALED OR MADE PUBLIC, EXCEPT BY ORDER OF THE
15
COURT."
16
Unless otherwise ordered by the Court, any hearing which may refer to or
17
describe Designated Material shall be held only after appropriate steps are taken to
18
ensure that the confidentiality of the information is preserved during the hearing.
19
9.
Exceptions.
The restrictions on dissemination of Confidential Information con-
20
21
tamed herein shall not apply to information which, prior to disclosure hereunder, is
22
either in the possession or knowledge of the receiving party or person who, absent
23
this Order is under no restriction with respect to the dissemination of such confi-
24
dential information, or to information which is public knowledge or which, after
25
disclosure, becomes public knowledge other than through an act or omission of a
26
party receiving the information designated under this Order.
27
28
MAP-RSI-2258
-10-
Case
-02461-BRO-PJV )Document 3T Filed 08/26/15 Pa )11 of 14 Page ID #:164
1
10. No Prejudice.
4
(a)
Nothing in this Order shall be construed as requiring disclosure
3
of privileged materials, materials subject to protection under the work product
4
doctrine, or materials which are otherwise beyond the permissible scope of
5
discovery. This Order is intended to provide a mechanism for the handling of
6
Confidential Information to which there is no objection to producing or disclosing
7
other than as to its confidentiality.
(b) Nothing in this Order shall preclude any party from seeking and
8
9
10
obtaining additional or different protection with respect to the confidentiality of
discovery.
(c)
11
This Order shall not diminish any existing obligation or right
12
with respect to Designated Material, nor shall it prevent a disclosure to which the
13
Designating Person consents in writing before the disclosure takes place.
(d) The acceptance of Designated Material shall not constitute an
14
15
admission or concession or permit an inference that the Confidential Information
16
is, in fact, confidential.
(e)
17
This Order shall be without prejudice to the right of any
18
receiving party or persons to bring before the Court at any time the question of
19
whether any particular information is properly categorized.
(f)
20
The burden of proof with respect to the propriety or correctness
21
in the designation of information as "CONFIDENTIAL" or "CONFIDENTIAL -
22
ATTORNEYS ONLY" shall rest on the party making such designations.
(g)
23
If at any time prior to the trial of this action a producing person
24
or party realizes that some portions of the information or material that person or
25
party previously produced without limitation should be designated as "CON-
26
FIDENTIAL" or "CONFIDENTIAL - ATTORNEYS ONLY," the producing
27
person or party may so designated by so apprising all parties in writing, and such
28
designated portion(s) of the material or information will thereafter be treated as
MAP-RSI-2258
-11-
Case .915-cv-02461-BRO-pJ\p’ )Document 37 Filed 08/26/15 Par )12 of 14 Page ID #:165
1
I "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS ONLY" under the
terms of this Order.
(h) In the event that any Confidential Information is disclosed,
3
4
either willfully or inadvertently, by a receiving party in contravention of this
5
Order, the Confidential Information shall not lose its status through such disclosure
6
and the disclosing party shall take all steps reasonably required to assure its
7
continued confidentiality.
8
11.
Final Disposition.
(a)
9
Upon final termination of this action, each receiving party shall
10
be under an obligation to assemble and return to the producing party all Designated
11
Material produced in the terminated action that contains confidential information
12
still subject to this Protective Order, including Derivative Documents and all
13
copies thereof; provided, however, the counsel of record may elect to destroy any
14
such materials.
(b) Notwithstanding the provisions of paragraph 10(a), the counsel
15
16
for a receiving party may retain one copy of pleadings, attorney and consultant
17
work product, Designated Materials and depositions taken in this action which
18
contain confidential information that remains subject to this Protective Order.
19
12. Modification and Survival.
The restrictions imposed by this Order may only be modified or
20
21
terminated by written stipulation of all parties or by order of this Court. This order
22
shall survive termination of this action.
23
24
25
26
27
28
MAP-RSI-2258
-12-
15-cv-02461-BRO-pJV )Document 37’ Filed 08/26/15 Pa )13 of 14 Page ID #:166
1
13. Jurisdiction of this Court.
The Court’s jurisdiction to enforce the terms of this Order expires six
2
3
months after final termination of the action.
4
Respectfully submitted,
5
ISAACMAN, KAUFMAN & PAINTER, P.C.
6
8
By: /Michael A. Painter!
Michael A. Painter
Attorneys for Plaintiff
9
DINSMORE & SANDELMAN1’T LLP
7
Dated: August 26, 2015
10
11
Dated: August 26, 2015
12
By: /Lewis Stevenson/
Lewis Stevenson
Attorneys for Defendants
13
14
ITISSOORD E.
15
16
17
UNITE AlESMAGISTRATE J
18
19
20
21
22
23
24
25
26
27
28
MAPRS1-2258
-13--
Case2
-BRO-PJV )Document 37’ Filed 08/26/15 Pa’ )14 of 14 Page ID #:167
1
EXHIBIT TO JOINT STIPULATED PROTECTIVE ORDER
2
hereby declare:
3
1.
4
I have received a copy of the Joint Stipulated Protective Order, which is
attached hereto and has been entered by the Court ("Protective Order").
5
2.
I have read the Protective Order and am fully familiar with its terms.
6
3.
I agree to comply with, and be bound by, the Protective Order until relieved
by further Order of the Court or by written agreement of the parties.
7
4.
8
I agree to submit to jurisdiction of this Court if any dispute arises over my
use of the Confidential Information covered under the Protective Order or over any other
9
issues raised under the Protective Order.
10
I declare under penalty of perjury under the laws of the United States that the
11
foregoing is true and correct.
12
Executed this
13
2015 at
day of
14
15
(Signature)
16
17
(Print name
18
19
20
21
22
23
24
25
26
27
28
I
MAP-RSI-2258
-14-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?