Electronic Waveform Lab, Inc. v. EK Health Services et al

Filing 56

PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Notice of Lodging 55 (sbu)

1 Nicholas P. Roxborough, State Bar No. 113540
[e-mail]
2 Drew E. Pomerance, State Bar No. 101239
[e-mail]
3 Joseph C. Gjonola, State Bar No. 241955
[e-mail]
4 ROXBOROUGH, POMERANCE, NYE & ADREANI, LLP
5820 Canoga Avenue, Suite 250
5 Woodland Hills, California 91367
Telephone: [phone]
6 Facsimile: [phone]
7 Attorneys for Plaintiff
Electronic Waveform Lab, Inc.
8
9
10

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

11
12 ELECTRONIC WAVEFORM LAB,
INC., a California corporation
13
Plaintiff,
14
v.
15
EK HEALTH SERVICES, a California
16 corporation; JAMES LESSENGER,
M.D., an individual; GRANT
17 NUGENT, M.D., an individual;
ALTON WILLIS, M.D., an individual;
18 JOE HARTZOG, M.D., an individual;
PATRICIA D. PEGRAM, M.D., an
19 individual; SUZANNE L. SERGILE,
M.D., an individual; GARRETT M.
20 CASEY, D.C., an individual;
MICHAEL J. LAUBACH, D.C., an
21 individual; JAY V. WESTPHAL, M.D.,
an individual; KATHLEEN GARY,
22 M.D., an individual; JOHANNA
APPEL, D.C., an individual; and DOES
23 1-100, inclusive
24

Case No. 2:15-cv-08061DMG (RAOx)

STIPULATED PROTECTIVE
ORDER

Defendants.

25
26
27
28
STIPULATED PROTECTIVE ORDER

1 1.

A.

PURPOSES AND LIMITATIONS

2

Discovery in this action is likely to involve production of confidential,

3 proprietary or private information for which special protection from public disclosure
4 and from use for any purpose other than prosecuting this litigation may be warranted.
5 Accordingly, the parties hereby stipulate to and petition the Court to enter the
6 following Stipulated Protective Order. The parties acknowledge that this Order does
7 not confer blanket protections on all disclosures or responses to discovery and that the
8 protection it affords from public disclosure and use extends only to the limited
9 information or items that are entitled to confidential and treatment under the
10 applicable legal principles.
11

B.

GOOD CAUSE STATEMENT

12

Electronic Waveform makes and sells the H-Wave® electrotherapy medical

13 device (“H-Wave”) used to treat injured workers. State Fund is a workers’
14 compensation insurer that contracts with EK Health to conduct a medical care review
15 process called Utilization Review (“UR”). California law requires State Fund to
16 establish a UR process to “approve, modify, delay, or deny, based in whole or in part
17 on medical necessity to cure and relieve, treatment recommendations by
18 physicians….” California Labor Code § 4610. Electronic Waveform contends that
19 State Fund and EK Health improperly conducted UR to deny H-Wave requests for
20 injured workers of employers that State Fund insured. State Fund and EK Health
21 deny all of Electronic Waveform’s allegations.
22

The Parties agree that, during discovery, they will seek confidential medical

23 information contained in individual claimants’ workers’ compensation claim files
24 pertaining to H-Wave requests and UR decisions. On October 26, 2016 the court
25 heard the parties’ motion for a protective order wherein it agreed that private medical
26 information should be subject to the court’s standard protective order and that an
27 “attorneys’ eyes only” provision may be included for the protection of appropriate
28 highly confidential business information, including but not limited to trade secrets.
STIPULATED PROTECTIVE ORDER

1
2

C.

ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

3

SEAL

4

The parties further acknowledge, as set forth in Section 12.3, below, that this

5 Stipulated Protective Order does not entitle them to file confidential information
6 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
7 the standards that will be applied when a party seeks permission from the court to file
8 material under seal.
9

There is a strong presumption that the public has a right of access to judicial

10 proceedings and records in civil cases. In connection with non-dispositive motions,
11 good cause must be shown to support a filing under seal. See Kamakana v. City and
12 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
13 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,
14 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
15 cause showing), and a specific showing of good cause or compelling reasons with
16 proper evidentiary support and legal justification, must be made with respect to
17 Protected Material that a party seeks to file under seal. The parties’ mere designation
18 of Disclosure or Discovery Material as CONFIDENTIAL does not — without the
19 submission of competent evidence by declaration, establishing that the material
20 sought to be filed under seal qualifies as confidential, privileged, or otherwise
21 protectable — constitute good cause.
22

Further, if a party requests sealing related to a dispositive motion or trial, then

23 compelling reasons, not only good cause, for the sealing must be shown, and the relief
24 sought shall be narrowly tailored to serve the specific interest to be protected. See
25 Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item
26 or type of information, document, or thing sought to be filed or introduced under seal
27 in connection with a dispositive motion or trial, the party seeking protection must
28 articulate compelling reasons, supported by specific facts and legal justification, for
3
STIPULATED PROTECTIVE ORDER

1 the requested sealing order. Again, competent evidence supporting the application to
2 file documents under seal must be provided by declaration.
3

Any document that is not confidential, privileged, or otherwise protectable in

4 its entirety will not be filed under seal if the confidential portions can be redacted.
5 If documents can be redacted, then a redacted version for public viewing, omitting
6 only the confidential, privileged, or otherwise protectable portions of the document,
7 shall be filed. Any application that seeks to file documents under seal in their
8 entirety should include an explanation of why redaction is not feasible.
9 2.
10

DEFINITIONS
2.1

“ATTORNEYS’ EYES ONLY” Information and Items: A subset of

11 “CONFIDENTIAL” information that federal law considers so highly sensitive that its
12 disclosure to a Party in this case would create a legally impermissible risk of injury to
13 the Designating Party, such as trade secret or highly confidential business
14 information.
15

2.2

Action: Electronic Waveform Lab, Inc. v. EK Health Services, et al.,

16 United States District Court, Central District of California, Case No. 2:15-cv-0806117 DMG-RAO.
18

2.3

Challenging Party: A Party or Non-Party that challenges the designation

19 of information or items under this Order.
20

2.4

“CONFIDENTIAL” Information or Items: Information (regardless of

21 how it is generated, stored or maintained) or tangible things that qualify for protection
22 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
23 Cause Statement.
24

2.5

Counsel: Counsel of Record and House Counsel (as well as their support

2.6

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

25 staff).
26

27 items that it produces in disclosures or in responses to discovery as
28 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
4
STIPULATED PROTECTIVE ORDER

1

2.7

Disclosure or Discovery Material: All items or information, regardless

2 of the medium or manner in which it is generated, stored, or maintained (including,
3 among other things, testimony, transcripts, and tangible things), that are produced or
4 generated in disclosures or responses to discovery in this matter.
5

2.8

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

6 pertinent to the litigation who has been retained by a Party or its counsel to serve as
7 an expert witness or as a consultant in this Action.
8

2.9

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

9 House Counsel does not include Counsel of Record or any other outside counsel.
10

2.10 Non-Party: Any natural person, partnership, corporation, association or

11 other legal entity not named as a Party to this action.
12

2.11 Counsel of Record: Attorneys who have appeared in this Action on

13 behalf of that Party or are affiliated with a law firm that has appeared on behalf of that
14 Party, and includes support staff.
15

2.12 Party: Any party to this Action, including all of its officers, directors,

16 employees, consultants, retained experts, and Counsel of Record (and their support
17 staffs).
18

2.13 Producing Party: A Party or Non-Party that produces Disclosure or

19 Discovery Material in this Action.
20

2.14 Professional Vendors: Persons or entities that provide litigation support

21 services (e.g., photocopying, videotaping, translating, preparing exhibits or
22 demonstrations, and organizing, storing, or retrieving data in any form or medium)
23 and their employees and subcontractors.
24

2.15 Protected Material: Any Disclosure or Discovery Material that is

25 designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
26

2.16 Receiving Party: A Party that receives Disclosure or Discovery Material

27 from a Producing Party.
28
5
STIPULATED PROTECTIVE ORDER

1

2.17 Requesting Party: A Party that requests or serves a subpoena for

2 disclosure or Discovery Material from a Producing Party.
3 3.

SCOPE

4

The protections conferred by this Stipulation and Order cover not only

5 Protected Material (as defined above), but also (1) any information copied or
6 extracted from Protected Material; (2) all copies, excerpts, summaries, or
7 compilations of Protected Material; and (3) any testimony, conversations, or
8 presentations by Parties or their Counsel that might reveal Protected Material.
9

Any use of Protected Material at trial shall be governed by the orders of the

10 trial judge. This Order does not govern the use of Protected Material at trial.
11 4.

DURATION

12

Once a case proceeds to trial, information that was designated as

13 CONFIDENTIAL, ATTORNEYS’ EYES ONLY, or maintained pursuant to this
14 protective order used or introduced as an exhibit at trial becomes public and will be
15 presumptively available to all members of the public, including the press, unless
16 compelling reasons supported by specific factual findings to proceed otherwise are
17 made to the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81
18 (distinguishing “good cause” showing for sealing documents produced in discovery
19 from “compelling reasons” standard when merits-related documents are part of court
20 record). Accordingly, the terms of this protective order do not extend beyond the
21 commencement of the trial.
22 5.

DESIGNATING PROTECTED MATERIAL

23

5.1

24

Each Party or Non-Party that designates information or items for protection

Exercise of Restraint and Care in Designating Material for Protection.

25 under this Order must take care to limit any such designation to specific material that
26 qualifies under the appropriate standards. The Designating Party must designate for
27 protection only those parts of material, documents, items or oral or written
28 communications that qualify so that other portions of the material, documents, items
6
STIPULATED PROTECTIVE ORDER

1 or communications for which protection is not warranted are not swept unjustifiably
2 within the ambit of this Order.
3

Mass, indiscriminate or routinized designations are prohibited. Designations

4 that are shown to be clearly unjustified or that have been made for an improper
5 purpose (e.g., to unnecessarily encumber the case development process or to impose
6 unnecessary expenses and burdens on other parties) may expose the Designating
7 Party to sanctions.
8

If it comes to a Designating Party’s attention that information or items that it

9 designated for protection do not qualify for protection, that Designating Party must
10 promptly notify all other Parties that it is withdrawing the inapplicable designation.
11

5.2

Manner and Timing of Designations. Except as otherwise provided in

12 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
13 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
14 under this Order must be clearly so designated before the material is disclosed or
15 produced.
16

Designation in conformity with this Order requires:

17

(a)

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

18 documents, but excluding transcripts of depositions or other pretrial or trial
19 proceedings), that the Producing Party affix at a minimum, the legend
20 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” (hereinafter
21 “CONFIDENTIAL legend” or “ATTORNEYS’ EYES ONLY legend”), to each page
22 that contains protected material. If only a portion of the material on a page qualifies
23 for protection, the Producing Party also must clearly identify the protected portion(s)
24 (e.g., by making appropriate markings in the margins).
25

A Party or Non-Party that makes original documents available for inspection

26 need not designate them for protection until after the inspecting Party has indicated
27 which documents it would like copied and produced. During the inspection and
28 before the designation, all of the material made available for inspection shall be
7
STIPULATED PROTECTIVE ORDER

1 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
2 it wants copied and produced, the Producing Party must determine which documents,
3 or portions thereof, qualify for protection under this Order. Then, before producing
4 the specified documents, the Producing Party must affix the “CONFIDENTIAL
5 legend” or “ATTORNEYS’ EYES ONLY legend” to each page that contains
6 Protected Material. If only a portion of the material on a page qualifies for protection,
7 the Producing Party also must clearly identify the protected portion(s) (e.g., by
8 making appropriate markings in the margins).
9

(b)

for testimony given in depositions that the Designating Party identifies

10 the Disclosure or Discovery Material on the record, before the close of the deposition
11 all protected testimony.
12

(c)

for information produced in some form other than documentary and for

13 any other tangible items, that the Producing Party affix in a prominent place on the
14 exterior of the container or containers in which the information is stored the legend,
15 “CONFIDENTIAL.” If only a portion or portions of the information warrants
16 protection, the Producing Party, to the extent practicable, shall identify the protected
17 portion(s).
18

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

19 failure to designate qualified information or items does not, standing alone, waive the
20 Designating Party’s right to secure protection under this Order for such material.
21 Upon timely correction of a designation, the Receiving Party must make reasonable
22 efforts to assure that the material is treated in accordance with the provisions of this
23 Order.
24 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

25

6.1

Timing of Challenges. Any Party or Non-Party may challenge a

26 designation of confidentiality at any time that is consistent with the Court’s
27 Scheduling Order.
28

6.2

Meet and Confer. The Challenging Party shall initiate the dispute
8
STIPULATED PROTECTIVE ORDER

1 resolution process under Local Rule 37.1 et seq.
2

6.3

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

3 the Designating Party. Frivolous challenges, and those made for an improper purpose
4 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
5 expose the Challenging Party to sanctions. Unless the Designating Party has waived
6 or withdrawn the confidentiality designation, all parties shall continue to afford the
7 material in question the level of protection to which it is entitled under the Producing
8 Party’s designation until the Court rules on the challenge.
9 7.
10

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

11 disclosed or produced by another Party or by a Non-Party in connection with this
12 Action only for prosecuting, defending or attempting to settle this Action. Such
13 Protected Material may be disclosed only to the categories of persons and under the
14 conditions described in this Order. When the Action has been terminated, a Receiving
15 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
16

Protected Material must be stored and maintained by a Receiving Party at a

17 location and in a secure manner that ensures that access is limited to the persons
18 authorized under this Order.
19

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

20 otherwise ordered by the court or permitted in writing by the Designating Party, a
21 Receiving Party may disclose any information or item designated
22 “CONFIDENTIAL” only to:
23

(a) the Receiving Party’s Counsel of Record in this Action, as well as

24 employees of said Counsel of Record to whom it is reasonably necessary to disclose
25 the information for this Action;
26

(b) the officers, directors, and employees (including House Counsel) of the

27 Receiving Party to whom disclosure is reasonably necessary for this Action;
28

(c) Experts (as defined in this Order) of the Receiving Party to whom
9
STIPULATED PROTECTIVE ORDER

1 disclosure is reasonably necessary for this Action and who have signed the
2 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
3

(d) the court and its personnel;

4

(e) court reporters and their staff;

5

(f) professional jury or trial consultants, mock jurors, and Professional

6 Vendors to whom disclosure is reasonably necessary for this Action and who have
7 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
8

(g) the author or recipient of a document containing the information or a

9 custodian or other person who otherwise possessed or knew the information;
10

(h) during their depositions, witnesses, and attorneys for witnesses, in the

11 Action to whom disclosure is reasonably necessary provided that they will not be
12 permitted to keep any confidential information unless they sign the
13 “Acknowledgment and Agreement to Be Bound” (Exhibit A), or unless otherwise
14 agreed by the Designating Party or ordered by the court. Pages of transcribed
15 deposition testimony or exhibits to depositions that reveal Protected Material may be
16 separately bound by the court reporter and may not be disclosed to anyone except as
17 permitted under this Stipulated Protective Order.
18

(i) any mediator or settlement officer, and their supporting personnel,

19 mutually agreed upon by any of the Parties engaged in settlement discussions.
20

7.3

Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items.

21 Unless otherwise ordered by the court or permitted in writing by the Designating
22 Party, a Receiving Party may disclose any information or item designated
23 “ATTORNEYS’ EYES ONLY” only to:
24

(a)

the Receiving Party’s Counsel of Record in this Action, as well as

25 employees of said Counsel of Record to whom it is reasonably necessary to disclose
26 the information for this Action;
27

(b)

Experts (as defined in this Order) of the Receiving Party to whom

28 disclosure is reasonably necessary for this Action and who have signed the
10
STIPULATED PROTECTIVE ORDER

1 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
2

(c)

the court and its personnel;

3

(d)

court reporters and their staff;

4

(e)

professional jury or trial consultants, mock jurors, and Professional

5 Vendors to whom disclosure is reasonably necessary for this Action and who have
6 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
7

(f)

the author or recipient of a document containing the information or a

8 custodian or other person who otherwise possessed or knew the information;
9

(g)

during their depositions, witnesses, and attorneys for witnesses, in the

10 Action to whom disclosure is reasonably necessary provided that they will not be
11 permitted to keep any confidential information unless they sign the
12 “Acknowledgment and Agreement to Be Bound” (Exhibit A), or unless otherwise
13 agreed by the Designating Party or ordered by the court. Pages of transcribed
14 deposition testimony or exhibits to depositions that reveal Protected Material maybe
15 separately bound by the court reporter and may not be disclosed to anyone except as
16 permitted under this Protective Order; and
17

(h)

any mediator or settlement officer, and their supporting personnel,

18 mutually agreed upon by any of the Parties engaged in settlement discussions.
19 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

20

IN OTHER LITIGATION

21

If a Party is served with a subpoena or a court order issued in other litigation

22 that compels disclosure of any information or items designated in this Action as
23 “CONFIDENTIAL,” or “ATTORNEYS’ EYES ONLY,” that Party must:
24

(a) promptly notify in writing the Designating Party. Such notification shall

25 include a copy of the subpoena or court order;
26

(b) promptly notify in writing the party who caused the subpoena or order to

27 issue in the other litigation that some or all of the material covered by the subpoena or
28 order is subject to this Protective Order. Such notification shall include a copy of this
11
STIPULATED PROTECTIVE ORDER

1 Stipulated Protective Order; and
2

(c) cooperate with respect to all reasonable procedures sought to be pursued

3 by the Designating Party whose Protected Material may be affected.
4

If the Designating Party timely seeks a protective order, the Party served with

5 the subpoena or court order shall not produce any information designated in this
6 action as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” before a
7 determination by the court from which the subpoena or order issued, unless the Party
8 has obtained the Designating Party’s permission. The Designating Party shall bear the
9 burden and expense of seeking protection in that court of its confidential material and
10 nothing in these provisions should be construed as authorizing or encouraging a
11 Receiving Party in this Action to disobey a lawful directive from another court.
12 9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

13

PRODUCED IN THIS LITIGATION

14

(a) The terms of this Order are applicable to information produced by a Non-

15 Party in this Action and designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES
16 ONLY.” Such information produced by Non-Parties in connection with this litigation
17 is protected by the remedies and relief provided by this Order. Nothing in these
18 provisions should be construed as prohibiting a Non-Party from seeking additional
19 protections.
20

(b) In the event that a Party is required, by a valid discovery request, to produce

21 a Non-Party’s confidential information in its possession, and the Party is subject to an
22 agreement with the Non-Party not to produce the Non-Party’s confidential
23 information, then the Party shall:
24

(1) promptly notify in writing the Requesting Party and the Non-Party that

25 some or all of the information requested is subject to a confidentiality agreement with
26 a Non-Party;
27

(2) promptly provide the Non-Party with a copy of the Stipulated Protective

28 Order in this Action, the relevant discovery request(s), and a reasonably specific
12
STIPULATED PROTECTIVE ORDER

1 description of the information requested; and
2

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

3 if requested.
4

(c) If the Non-Party fails to seek a protective order from this court within 14

5 days of receiving the notice and accompanying information, the Receiving Party may
6 produce the Non-Party’s confidential information responsive to the discovery request.
7 If the Non-Party timely seeks a protective order, the Receiving Party shall not
8 produce any information in its possession or control that is subject to the
9 confidentiality agreement with the Non-Party before a determination by the court.
10 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
11 of seeking protection in this court of its Protected Material.
12 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

13

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

14 Protected Material to any person or in any circumstance not authorized under this
15 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
16 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
17 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
18 persons to whom unauthorized disclosures were made of all the terms of this Order,
19 and (d) request such person or persons to execute the “Acknowledgment and
20 Agreement to Be Bound” that is attached hereto as Exhibit A.
21 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

22

PROTECTED MATERIAL

23

When a Producing Party gives notice to Receiving Parties that certain

24 inadvertently produced material is subject to a claim of privilege or other protection,
25 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
26 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
27 may be established in an e-discovery order that provides for production without prior
28 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
13
STIPULATED PROTECTIVE ORDER

1 parties reach an agreement on the effect of disclosure of a communication or
2 information covered by the attorney-client privilege or work product protection, the
3 parties may incorporate their agreement in the stipulated protective order submitted to
4 the court.
5 12.

MISCELLANEOUS

6

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

7 person to seek its modification by the Court in the future.
8

12.2 Right to Assert Other Objections. By stipulating to the entry of this

9 Protective Order, no Party waives any right it otherwise would have to object to
10 disclosing or producing any information or item on any ground not addressed in this
11 Stipulated Protective Order. Similarly, no Party waives any right to object on any
12 ground to use in evidence of any of the material covered by this Protective Order.
13

12.3 Filing Protected Material. A Party that seeks to file under seal any

14 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
15 only be filed under seal pursuant to a court order authorizing the sealing of the
16 specific Protected Material at issue. If a Party’s request to file Protected Material
17 under seal is denied by the court, then the Receiving Party may file the information in
18 the public record unless otherwise instructed by the court.
19

12.4 Storage and Transmission of Protected Material. The Parties agree to

20 encrypt, as defined by California Civil Code § 1798.29(h)(4), all computerized data,
21 information and documents designated as containing CONFIDENTIAL Information
22 or ATTORNEYS' EYES ONLY Information for storage and during transportation,
23 transfer, or transmission.
24 13.

FINAL DISPOSITION

25

After the final disposition of this Action, as defined in paragraph 4, within 60

26 days of a written request by the Designating Party, each Receiving Party must return
27 all Protected Material to the Producing Party or destroy such material. As used in this
28 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
14
STIPULATED PROTECTIVE ORDER

1 summaries, and any other format reproducing or capturing any of the Protected
2 Material. Whether the Protected Material is returned or destroyed, the Receiving
3 Party must submit a written certification to the Producing Party (and, if not the same
4 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
5 (by category, where appropriate) all the Protected Material that was returned or
6 destroyed and (2) affirms that the Receiving Party has not retained any copies,
7 abstracts, compilations, summaries or any other format reproducing or capturing any
8 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
9 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
10 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
11 reports, attorney work product, and consultant and expert work product, even if such
12 materials contain Protected Material. Any such archival copies that contain or
13 constitute Protected Material remain subject to this Protective Order as set forth in
14 Section 4 (DURATION).
15 14.

VIOLATION

16

Any violation of this Order may be punished by appropriate measures

17 including, without limitation, contempt proceedings and/or monetary sanctions.
18
19

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

20
21 Dated: November 8, 2016
22
23
24
25
26

ROXBOROUGH, POMERANCE, NYE &
ADREANI, LLP
By: /s/ Joseph C. Gjonola
NICHOLAS P. ROXBOROUGH
DREW E. POMERANCE
JOSEPH C. GJONOLA
Attorneys for Plaintiff
ELECTRONIC WAVEFORM LAB, INC.

27
28
15
STIPULATED PROTECTIVE ORDER

1

Dated: November 8, 2016

2

LECLAIR RYAN, LLP
/s/ Brian C. Vanderhoof
JAMES C. POTEPAN
BRIAN C. VANDERHOOF
Attorneys for Defendants
EK HEALTH SERVICES; JAMES
LESSENGER, M.D.; GRANT
NUGENT, M.D.; ALTON WILLS,
M.D.; JOE HARTZOG, M.D.;
PATRICIA D. PEGRAM, M.D.;
SUZANNE L. SERGILE, M.D.;
GARRETT M. CASEY, D.C.;
MICHAEL J. LAUBACH, D.C.; JAY
V. WESTPHAL, M.D.; KATHLEEN
GRAY, M.D.; JOHANNA APPEL,
D.C., RICHARD THOMPSON, M.D.,
JANET O’BRIEN, M.D., and DAVID
EHRENFELD, M.D.

By:

3
4
5
6
7
8
9
10
11 DATED: November 8, 2016
12

BETTY R. QUARLES,
Assistant Chief Counsel

13
By:

14
15
16
17

/s/ Brandon R. Creel
NOAH GRAFF
BRANDON R. CREEL
Attorneys for Defendant
STATE COMPENSATION INSURANCE
FUND

18
19 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
20 DATED: November 9, 2016
21
22
23

_______________________________________
HON. ROZELLA A. OLIVER
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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 [date] in the case of Electronic

7 Waveform Lab, Inc. v. EK Health Services, et al., United States District Court, Central
8 District of California, Case No. 2:15-cv-08061-DMG-RAO. I agree to comply with
9 and to be bound by all the terms of this Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and punishment
11 in the nature of contempt. I solemnly promise that I will not disclose in any manner
12 any information or item that is subject to this Protective Order to any person or entity
13 except in strict compliance with the provisions of this Order. I further agree to submit
14 to the jurisdiction of the United States District Court for the Central District of
15 California for enforcing the terms of this Protective Order, even if such enforcement
16 proceedings occur after termination of this action. I hereby appoint
17 ____________________ [print or type full name] of _________________________
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[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: _______________________
Printed name:

_______________________

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25 Signature:
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_______________________

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STIPULATED PROTECTIVE ORDER