Puretek Corporation v. Patchwerx Labs, Inc. et al

Filing 103

REVISED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Notice of Lodging 102 . (See Order for details) [Note Changes Made By The Court]. (bem)

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NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CASE NO. 2:15-cv-07044 DMG (JPR)

PURETEK CORPORATION,
a California Corporation,

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REVISED PROTECTIVE ORDER

Plaintiff,

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v.

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PATCHWERX LABS, INC. a Delaware
corporation, PAUL SMITH, an individual,
GULF COAST PHARMACEUTICALS
PLUS, LLC, a Mississippi Limited
Liability Company, SAFE CHAIN
SOLUTIONS, LLC, a Maryland Limited
Liability Company, and MAXIMED, A
New York Corporation,
Defendants.

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1.

PURPOSE AND LIMITS OF THIS ORDER
Discovery in this action is likely to involve confidential, proprietary, or private

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information requiring special protection from public disclosure and from use for any

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purpose other than this litigation. Thus, the Court enters this Protective Order. This

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Order does not confer blanket protections on all disclosures or responses to discovery,
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and the protection it gives from public disclosure and use extends only to the specific

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material entitled to confidential treatment under the applicable legal principles. This

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Order does not automatically authorize the filing under seal of material designated

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under this Order. Instead, the parties must comply with L.R. 79-5.1 if they seek to file

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anything under seal. This Order does not govern the use at trial of material designated

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under this Order.

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As used in this Order, “CONFIDENTIAL” information and materials shall

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include all information and materials that have not been made public, the disclosure of

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which the disclosing party contends could cause harm to its business operations or

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provide improper advantage to others. “Confidential” information and materials shall

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include, but shall not be limited to information that concerns or relates to (1) sales,

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marketing, manufacturing, or research and development; (2) financial performance; (3)

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manufacturing or other costs of doing business; (4) licenses or other confidential

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agreements; and/or (5) technical details of products or methods of doing business

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and/or marketing;

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As used in this Order, “HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY” information and materials shall include trade secrets within the meaning of the

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Uniform Trade Secrets Act and all information and materials that the disclosing party

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has reasonable grounds to believe would, if known to any officer, director, employee,

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or agent of a receiving party, or to the public, lead to a significant harm or injury to the

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reputation and/or business of the disclosing party or provide improper advantage to

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others.

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2.

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DESIGNATING PROTECTED MATERIAL
2.1

Over-Designation Prohibited. Any party or non-party who designates

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information or items for protection under this Order as “CONFIDENTIAL,”

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” (a “designator”) must

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only designate specific material that qualifies under the appropriate standards. To the

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extent practicable, only those parts of documents, items, or oral or written
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communications that require protection shall be designated. Designations with a

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higher confidentiality level when a lower level would suffice are prohibited. Mass,

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indiscriminate, or routinized designations are prohibited. Unjustified designations

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expose the designator to sanctions, including the Court’s striking all confidentiality

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designations made by that designator. Designation under this Order is allowed only if

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the designation is necessary to protect material that, if disclosed to persons not

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authorized to view it, would cause competitive or other recognized harm. Material

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may not be designated if it has been made public, or if designation is otherwise

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unnecessary to protect a secrecy interest. If a designator learns that information or

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items that it designated for protection do not qualify for protection at all or do not

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qualify for the level of protection initially asserted, that designator must promptly

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notify all parties that it is withdrawing the mistaken designation.

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2.2

Manner and Timing of Designations. Designation under this Order

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requires the designator to affix the applicable legend (“CONFIDENTIAL,” or

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY”) to each page or item that

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contains protected material. For testimony given in deposition or other proceeding, the

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designator shall specify all protected testimony and the level of protection being

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asserted. It may make that designation during the deposition or proceeding, or may

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invoke, on the record or by written notice to all parties on or before the next business

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day, a right to have up to 21 days from the deposition or proceeding to make its

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designation.

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Parties shall give advance notice if they expect a deposition or other proceeding

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to include designated material so that the other parties can ensure that only authorized

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individuals are present at those proceedings when such material is disclosed or used.

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The use of a document as an exhibit at a deposition shall not in any way affect its

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designation. Transcripts containing designated material shall have a legend on the title

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page noting the presence of designated material, and the title page shall be followed by

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a list of all pages (including line numbers as appropriate) that have been designated,
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and the level of protection being asserted. The designator shall inform the court

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reporter of these requirements. Any transcript that is prepared before the expiration of

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the 21-day period for designation shall be treated during that period as if it had been

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designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY unless

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otherwise agreed. After the expiration of the 21-day period, the transcript shall be

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treated only as actually designated.

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2.2.1 Any outside counsel-of-record that receives documents or materials

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produced by a non-party in response to a subpoena (“Subpoenaed Material”) shall,

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within two (2) court days of receiving Subpoenaed Material, provide notice to all other

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outside counsel-of-record of such receipt. Any outside counsel-of-record may, within

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two (2) court days of receiving such notice of Subpoenaed Material, request delivery

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of the Subpoenaed Material, which delivery must be made within two (2) business

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days thereafter, with the requesting party paying the reasonable cost of such delivery.

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If no outside counsel-of-record requests delivery of the Subpoenaed Material within

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two (2) business days after receiving such notice of the Subpoenaed Material, the

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Subpoenaed Material shall receive no designation under this Order. If, however, any

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outside counsel-of-record requests delivery of the Subpoenaed Material, the outside

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counsel-of-record may designate the Subpoenaed Material in accordance with this

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Order (“the Subpoenaed Document Quarantine”) within five (5) court days after

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receiving the Subpoenaed Material. At all times between a non-party’s production of

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Subpoenaed Material and expiration of the Subpoenaed Document Quarantine, if any,

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the Subpoenaed Material shall be afforded the highest level of protection under this

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Order and thus shall be deemed “HIGHLY CONFIDENTIAL-ATTORNEY EYES

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ONLY.” After the expiration of the five-day period, the Subpoenaed Material shall be

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treated only as actually designated; any portions not designated under this order shall

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not be protected by it.

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2.3

Inadvertent Failures to Designate. An inadvertent failure to designate

does not, standing alone, waive protection under this Order. Upon timely assertion or
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correction of a designation, all recipients must make reasonable efforts to ensure that

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the material is treated according to this Order.

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3.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1

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through L.R. 37-4.

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4.

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ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only for

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this litigation. Designated material may be disclosed only to the categories of persons

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and under the conditions described in this Order.

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4.2

Disclosure of CONFIDENTIAL Material. Unless otherwise ordered by

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the Court or permitted in writing by the designator, a receiving party may disclose any

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material designated CONFIDENTIAL only to:

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4.2.1 The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom disclosure is reasonably necessary;

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4.2.2 The officers, directors, and employees of the receiving party to

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whom disclosure is reasonably necessary, and who have signed the Agreement to Be

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Bound (Exhibit A);

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4.2.3 Experts retained by the receiving party’s outside counsel of record

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to whom disclosure is reasonably necessary, and who have signed the Agreement to Be

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Bound (Exhibit A);

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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably necessary, and

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who have signed the Agreement to Be Bound (Exhibit A);

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4.2.6 During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to Be Bound

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(Exhibit A); and

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4.2.7 The author or recipient of a document containing the material, or a
custodian or other person who otherwise possessed or knew the information.
4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY Material. Unless permitted in writing by the designator, a receiving party may

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disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY without further approval only to:

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4.3.1 The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom it is reasonably necessary to disclose

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the information;

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4.3.2 The Court and its personnel;

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4.3.3 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably necessary, and

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who have signed the Agreement to Be Bound (Exhibit A); and

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4.3.4 The author or recipient of a document containing the material, or a
custodian or other person who otherwise possessed or knew the information.
4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY. Unless agreed to in writing by the

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designator:

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4.4.1 A party seeking to disclose to in-house counsel or the employees or

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officers of the receiving party (“proposed recipient”) any material designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written request to

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the designator providing the full name of the proposed recipient, the city and state of

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his or her residence, and the recipient’s current and reasonably foreseeable future

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primary job duties and responsibilities in sufficient detail to determine present or

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potential involvement in any competitive decision-making.

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4.4.2 A party seeking to disclose to an expert retained by outside counsel

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of record any information or item that has been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written request to
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the designator that (1) identifies the general categories of HIGHLY CONFIDENTIAL

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– ATTORNEY EYES ONLY information that the receiving party seeks permission to

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disclose to the expert, (2) sets forth the full name of the expert and the city and state of

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his or her primary residence, (3) attaches a copy of the expert’s current resume, (4)

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identifies the expert’s current employer(s), (5) identifies each person or entity from

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whom the expert has received compensation or funding for work in his or her areas of

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expertise (including in connection with litigation) in the past two years, and (6)

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identifies (by name and number of the case, filing date, and location of court) any

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litigation where the expert has offered expert testimony, including by declaration,

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report, or testimony at deposition or trial, in the past two years. If the expert believes

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any of this information at (4) - (6) is subject to a confidentiality obligation to a third

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party, then the expert should provide whatever information the expert believes can be

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disclosed without violating any confidentiality agreements, and the party seeking to

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disclose the information to the expert shall be available to meet and confer with the

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designator regarding any such confidentiality obligations.

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4.4.3 A party that makes a request and provides the information specified

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in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the identified

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recipient unless, within seven days of delivering the request, the party receives a

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written objection from the designator providing detailed grounds for the objection.

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4.4.4 All challenges to objections from the designator shall proceed
under L.R. 37-1 through L.R. 37-4.
5.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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5.1

Subpoenas and Court Orders. This Order in no way excuses non-

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compliance with a lawful subpoena or court order. The purpose of the duties described

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in this section is to alert the interested parties to the existence of this Order and to give

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the designator an opportunity to protect its confidentiality interests in the court where

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the subpoena or order issued.
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5.2

Notification Requirement. If a party is served with a subpoena or a

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court order issued in other litigation that compels disclosure of any information or

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items designated in this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY must:

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5.2.1 Promptly notify the designator in writing. Such notification shall
include a copy of the subpoena or court order;

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5.2.2 Promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Order. Such notification shall include a copy of

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this Order; and

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5.2.3 Cooperate with all reasonable procedures sought by the designator
whose material may be affected.

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5.3

Wait For Resolution of Protective Order. If the designator timely seeks

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a protective order, the party served with the subpoena or court order shall not produce

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any information designated in this action as CONFIDENTIAL or HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY before a determination by the court

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where the subpoena or order issued, unless the party has obtained the designator’s

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permission. The designator shall bear the burden and expense of seeking protection of

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its confidential material in that court.

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6.

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UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed

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designated material to any person or in any circumstance not authorized under this

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Order, it must immediately (1) notify in writing the designator of the unauthorized

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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the designated

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material, (3) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (4) use reasonable efforts to have such person

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or persons execute the Agreement to Be Bound (Exhibit A).

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7.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). If

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a receiving party learns that it has received from a disclosing party a document or thing

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that appears on its face to contain privileged material that has been inadvertently

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disclosed, the receiving party shall immediately notify the disclosing party of the

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identity of the material that appears on its face to be privileged. This provision is not

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intended to modify whatever procedure may be established in an e-discovery order that

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provides for production without prior privilege review pursuant to Federal Rule of

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Evidence 502(d) and (e).

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8.

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FILING UNDER SEAL
Without written permission from the designator or a Court order, a party may

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not file in the public record in this action any designated material. A party seeking to

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file under seal any designated material must comply with L.R. 79-5.1. Filings may be

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made under seal only pursuant to a court order authorizing the sealing of the specific

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material at issue. The fact that a document has been designated under this Order is

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insufficient to justify filing under seal. Instead, parties must explain the basis for

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confidentiality of each document sought to be filed under seal. Because a party other

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than the designator will often be seeking to file designated material, cooperation

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between the parties in preparing, and in reducing the number and extent of, requests

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for under seal filing is essential. If a receiving party’s request to file designated

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material under seal pursuant to L.R. 79-5.1 is denied by the Court, then the receiving

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party may file the material in the public record unless (1) the designator seeks

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reconsideration within four days of the denial, or (2) as otherwise instructed by the

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Court.

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9.

FINAL DISPOSITION
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Within 60 days after the final disposition of this action, each party shall return

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all designated material to the designator or destroy such material, including all copies,

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abstracts, compilations, summaries, and any other format reproducing or capturing any

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designated material. The receiving party must submit a written certification to the

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designator by the 60-day deadline that (1) identifies (by category, where appropriate)

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all the designated material that was returned or destroyed, and (2) affirms that the

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receiving party has not retained any copies, abstracts, compilations, summaries, or any

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other format reproducing or capturing any of the designated material. This provision

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shall not prevent counsel from retaining an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and

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expert work product, even if such materials contain designated material. Any such

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archival copies remain subject to this Order.

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IT IS SO ORDERED.

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DATED: September 12, 2016

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_______________________________
Hon. Jean P. Rosenbluth
United States Magistrate Judge

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, _____________________________________________ [print or type full

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name], of _______________________________________ [print or type full address],

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declare under penalty of perjury that I have read in its entirety and understand the

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Protective Order that was issued by the United States District Court for the Central

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District of California on ________________ [date] in the cases of Puretek Corp. v.

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Patchwerx Labs, Inc. et al.., Case No. 2:15-cv-07044 DMG (JPR). I agree to comply

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with and to be bound by all the terms of this Protective Order, and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment

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for contempt.

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information or item that is subject to this Protective Order to any person or entity

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except in strict compliance with this Order.

I solemnly promise that I will not disclose in any manner any

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I further agree to submit to the jurisdiction of the United States District Court for

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the Central District of California for the purpose of enforcing this Order, even if such

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enforcement proceedings occur after termination of this action. I hereby appoint

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____________________________________________ [print or type full name] of

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___________________________________________________________________

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[print or type full address and telephone number] as my California agent for service of

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process in connection with this action or any proceedings related to enforcement of this

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Order.

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Date: _____________________________________

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City and State where sworn and signed:

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Printed name:

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Signature:

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