Loris Furlow v. Janssen Research and Development LLC et al

Filing 23

STIPULATED PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver. *Note: Changes Made by the Court.* (es)

1 TUCKER ELLIS LLP
Mollie F. Benedict - SBN 187084
2 [e-mail]
05/02/16
Joshua J. Wes - SBN 238541
3 [e-mail]
G
R
515 South Flower Street
4 Forty-Second Floor
Los Angeles, CA 90071-2223
NOTE: CHANGES MADE BY THE COURT
213.430.3400
5 Telephone:
Facsimile:
213.430.3409
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Attorneys for Defendants
7 JANSSEN PHARMACEUTICALS, INC.;
JANSSEN RESEARCH & DEVELOPMENT, LLC;
8 JANSSEN ORTHO LLC; and JOHNSON & JOHNSON
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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

13 LORIS FURLOW,
Plaintiff,

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v.

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16 JANSSEN RESEARCH &
DEVELOPMENT L.L.C. f/k/a/
17 JOHNSON & JOHNSON
PHARMACEUTICAL RESEARCH AND
18 DEVELOPMENT L.L.C.; JOHNSON &
JOHNSON; JANSSEN
19 PHARMACEUTICALS, INC. f/k/a
ORTHO-MCNEIL-JANSSEN
20 PHARMACEUTICALS, INC.; JANSSEN
ORTHO L.L.C.; MITSUBISHI TANABE
21 PHARMA CORPORATION; AND JOHN
DOES 1-50, Defendants
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Defendants.
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) Case No. 2:16-cv-01386-JAK (RAOx)
) Hon. John A. Kronstadt
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) STIPULATED PROTECTIVE ORDER
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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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[PROPOSED] STIPULATED PROTECTIVE ORDER
The undersigned counsel for Defendants and Plaintiff (collectively, the “Parties”
and each, a “Party”) in the above captioned action agree that the Parties and non-parties
will be required to produce or disclose in this proceeding certain information and
documents that are subject to confidentiality limitations on disclosure under applicable
laws and regulations and applicable privacy rights. Such documents, described in more
detail below, include information that is a trade secret or other confidential research,
development, or commercial information or is of a private or personal nature. Disclosure
of such information without reasonable restriction on the use of the information may
cause harm, damage, loss, embarrassment, or disadvantage to the Producing Party or
nonparty.
Accordingly, the Parties desire entry of an order, pursuant to the Federal Rules of
Civil Procedure 26(c), and other applicable laws and rules, that will facilitate the prompt
resolution of concerns or disputes over confidentiality, that will adequately protect
material believed in good faith to be confidential and ensure that protection is afforded
only to material so entitled and that will address any inadvertent production of documents
or information protected from disclosure by the attorney-client privilege, work-product
immunity, or other applicable privilege:

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Therefore, the Parties hereby STIPULATE, subject to the Court’s approval, and
16 the Court, for good cause shown and after having an opportunity to discuss this
Protective Order with the Parties, hereby ORDERS that the following procedures shall be
17 followed in this proceeding to facilitate the orderly and efficient discovery of relevant
18 information while minimizing the potential for unauthorized disclosure or use of
confidential or proprietary information and documents.
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1.
Purpose. The Parties recognize that preparation for any trial of this action
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may require the discovery of certain information that a Designating Party, as defined
21 below, reasonably and in good faith believes should be subject to confidential treatment
22 under a protective order. The designation of a document, material, or information
(whether written, graphic or electronic) as being subject to the terms and conditions of
23 this Protective Order, is intended solely to facilitate prompt discovery and the preparation
24 for trial of this action.
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2.

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Scope
a. This Protective Order shall govern all hard copy and electronic materials, the
information contained therein, and all other information including all copies,
excerpts, summaries, or compilations thereof, whether revealed in a
document, deposition, other testimony, discovery response, or otherwise,

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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that any party to this proceeding (the “Producing Party” or “Designating
Party) produces to any other party (the “Receiving Party”) and that the
Producing Party designates as confidential under this Protective Order.

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b. This Protective Order is binding upon all Parties and their counsel in this
proceeding , upon all signatories to Exhibit A, and upon (as applicable) their
respective corporate parents, subsidiaries, and affiliates, including their
successors, and their respective attorneys, principals, experts, consultants,
representatives, directors, officers, employees, and others as set forth in this
Protective Order.

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c. If additional parties are added other than parents, subsidiaries or affiliates of
current parties to this litigation, their ability to receive a document protected
by this Protective Order will be subject to their being bound, by agreement
or Court Order, to this Protective Order.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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d. Third Parties who are obligated to produce Confidential Material in this
Action and who so elect may avail themselves of, and agree to be bound by,
the terms and conditions of this Protective Order and thereby become a
Producing Party for purposes of this Protective Order.

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e. The entry of this Protective Order does not preclude any Party from seeking
further order of this Court, including modification of this order, or from
objecting to discovery that the Party believes to be improper.

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f. Nothing herein shall be construed as an admission or concession by any
Party that designated Confidential Material, or any Document or Information
derived from Confidential Material, constitutes material, relevant, or
admissible evidence in this matter.

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Definitions. In this Order, the terms set forth below shall have the following

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3.
21 meanings:
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a. “Proceeding” or “Action” means the above-entitled proceeding.

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b. “Court” means the Honorable Judge currently assigned to this proceeding or
any other judge to which this proceeding may be assigned, including Court
staff participating in such proceedings.

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c. “Document” or “Documents” shall have the meaning set out in Federal Rule
of Civil Procedure 34(a) and, for purposes of this order, shall include
electronically stored information.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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d. “Testimony” means all depositions, declarations or other pre-trial testimony
taken or used in this Proceeding.

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e. “Information” means the content of Documents or Testimony, as well as any
matter derived therefrom or based thereon.

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f. “Confidential Material” or “Confidential Discovery Material” means any
Document (electronic or hard copy), Testimony, or Information that a
Designating Party reasonably and in good faith believes to be entitled to
confidential treatment under Federal Rule of Civil Procedure 26 and/or other
applicable laws and that the Party designates as such in accordance with the
provisions of this Order. “Confidential Materials includes, but is not limited
to:

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i. A plaintiff’s personal identifying information, financial information,
medical/insurance information, and, with respect to any Party, any
other information believed in good faith by the Designating Party to
be subject to protection from disclosure by a natural person’s right of
privacy under applicable privacy laws or regulations;

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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ii. A defendant’s or non-party’s trade secrets (as defined in the Uniform
Trade Secrets Act) and other proprietary or confidential business
information of commercial value and believed in good faith to be
subject to protection from disclosure under Federal Rule of Civil
Procedure 26 and/or applicable statutes, laws, or regulations.

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iii. All material, data, and information obtained, derived, or generated
from “Confidential Material,” to the extent the same are not publicly
available or otherwise subject to the exclusions herein.

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iv. Specifically excluded from the definition of “Confidential Material”
are:

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1. Any Documents, Testimony, or Information that have been, or
in the future will be, designated as “not confidential” by order
of any court;

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2. Any Documents, Testimony, or Information obtained, in the
past or in the future, by any person or entity through procedures
established under the Freedom of Information Act or other
public records request. In the event of a dispute as to whether a
Document, Testimony, or Information is available through the
Freedom of Information Act or other public records request, the
issue will be resolved by Plaintiffs’ counsel making an

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appropriate request for the release of such material from the
appropriate governmental agency and the granting of such
request by the agency or a court.

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g. The phrase “Confidential Material—Attorney Eyes Only” refers to
Confidential Material that the Designating Party believes in good faith to
contain highly confidential information the disclosure of which to the
Party’s competitors would cause the Designating Party serious competitive
and commercial harm. As used in this Order, and unless otherwise specified,
“Confidential Material” shall encompass “Confidential Material—Attorney
Eyes Only.”

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h. “Designating Party” means the Party or non-party that designates
Documents, Testimony, or Information as Confidential Material.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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i. “Disclose,” “Disclosed” or “Disclosure” means to reveal, divulge, give, or
make available Documents, Testimony, or any part thereof, or any
Information contained therein.

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4.

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Designations of Confidential Material.
a. Designation of Documents.

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i. Documents Produced in TIFF-Image Format. With respect to any
Document produced in TIFF-image format, a Designating Party may
designate the Document as Confidential Material or Confidential
Material—Attorney Eyes Only by placing a stamp or marking on each
page of the Document stating the following: CONFIDENTIAL,
SUBJECT TO PROTECTIVE ORDER, PRODUCED BY
[PARTY NAME] IN [NAME OF LITIGATION] or
CONFIDENTIAL—ATTORNEY EYES ONLY, SUBJECT TO
PROTECTIVE ORDER, PRODUCED BY [PARTY NAME] IN
[NAME OF LITIGATION]. Such markings shall not obscure, alter,
or interfere with the legibility of the original document.

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1. All copies, duplicates, extracts, summaries, or descriptions
(hereinafter referred to collectively as “copies”) of Confidential
Material produced in TIFF-image format shall be marked with
the same confidential stamp or marking as contained on the
original, unless the original confidential stamp or marking
already appears on the copies.

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ii. Documents Produced in Native Format. With respect to any
Document produced in native format (“Native-Format Document”), a

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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Designating Party may designate the Document as Confidential
Material or Confidential Material—Attorney Eyes Only by renaming
the Document to include, at the end of the file name and prior to the
file extension, the following language: CONFIDENTIAL,
SUBJECT TO PROTECTIVE ORDER, PRODUCED BY
[PARTY NAME] IN [NAME OF LITIGATION] or
CONFIDENTIAL—ATTORNEY EYES ONLY, SUBJECT TO
PROTECTIVE ORDER, PRODUCED BY [PARTY NAME] IN
[NAME OF LITIGATION].

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1. Native-Format Documents may have to be copied or duplicated
for use in a litigation-support review application. Any such
copy or duplicate shall retain the full file name as originally
produced.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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2. For use outside a litigation-support review application,
Receiving Parties may make native-format copies or duplicates
of a Native-Format Document solely (a) for use with experts or
consultants who are retained in this Action and who are
Qualified Persons as defined below or (b) for use as deposition
or trial exhibits. Any such copy or duplicate shall retain the full
file name as originally produced.

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3. All other copies or duplicates of Native-Format Documents
(e.g., TIFF-image, PDF, hardcopy) and all extracts, summaries,
or descriptions of Native-Format Documents shall contain a
stamp or marking on each page of the Document stating the
following: CONFIDENTIAL, SUBJECT TO
PROTECTIVE ORDER, PRODUCED BY [PARTY
NAME] IN [NAME OF LITIGATION] or
CONFIDENTIAL—ATTORNEY EYES ONLY, SUBJECT
TO PROTECTIVE ORDER, PRODUCED BY [PARTY
NAME] IN [NAME OF LITIGATION]. Such markings shall
not obscure, alter, or interfere with the legibility of the original
document.

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b. Designation of Deposition Transcripts.

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i. During depositions, Confidential Material may be used or marked as
exhibits, but shall remain subject to this Order and may not be shown
to the witness unless such witness is a Qualified Person as describe
below

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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ii. If deposition Testimony or exhibits contain or refer to Confidential
Material, or if they contain or refer to Documents, Testimony, or
Information to be designated as Confidential Material, the
Designating Party, by and through counsel, shall either

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1. On the record at the deposition, designate the Testimony or
exhibit(s) as Confidential Material or, as applicable, identify
already-designated Confidential Material, or

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2. No later than thirty (30) days after receiving a copy of the
deposition transcript, inform the deposing counsel and counsel
for other Parties that the Testimony or exhibit(s) constitute
Confidential Material; during the thirty-day period, the entire
deposition testimony, transcript, and exhibits shall be treated as
Confidential Material under this Order.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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iii. When a Party designates testimony as Confidential Material during
the deposition, counsel for that Party may exclude from the deposition
all persons who are not Qualified Persons under this Order.

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iv. When portions of a deposition transcript or its exhibits are designated
for protection, the transcript or exhibit pages containing Confidential
Material shall be separately bound by the court reporter, who must
affix to the top of each page the legend “CONFIDENTIAL,
SUBJECT TO PROTECTIVE ORDER IN [NAME OF
LITIGATION]” or CONFIDENTIAL—ATTORNEY EYES
ONLY, SUBJECT TO PROTECTIVE ORDER IN [NAME OF
LITIGATION].

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c. Written Pleadings, Motion Papers, and Discovery Materials. A party may
designate as Confidential Material portions of interrogatories and
interrogatory answers, responses to requests for admissions and the requests
themselves, requests for production of documents and things and responses
to such requests, pleadings, motions, affidavits, and briefs that quote,
summarize, or contain Confidential Material. To the extent feasible, such
Confidential Material shall be prepared in such a manner that it is bound
separately from material not entitled to protection.

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d. Designation of Other Confidential Material. With respect to Confidential
Material produced in some form other than as described above, including,
without limitation, compact discs or DVDs or other tangible items, the
Designating Party must affix in a prominent place on the exterior of the
container or containers in which the Information or item is stored the legend

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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“CONFIDENTIAL, SUBJECT TO PROTECTIVE ORDER,
PRODUCED BY [PARTY NAME] IN [NAME OF LITIGATION]” or
CONFIDENTIAL—ATTORNEY EYES ONLY, PRODUCED BY
[PARTY NAME] IN [NAME OF LITIGATION]. If only portions of the
Information or item warrant protection, the Designating Party, to the extent
practicable, shall identify the portions that constitute “Confidential
Materials.”

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e. With respect to Documents or Information produced or disclosed by a nonparty, either the non-party or a Party may designate the Documents or
Information as Confidential Material pursuant to this Order. A Party so
designating material produced by a non-Party shall notify all other Parties
within 30 days of receipt of such Document or Information that the same or
portions thereof constitute or contain Confidential Material. Until the
expiration of 30 days, such Document or Information produced or disclosed
by any such non-party shall be treated as Confidential Material under this
Order.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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5.

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Required Treatment of Confidential Material.
a. Except as specifically provided in this Order, counsel shall keep all
Confidential Material disclosed or produced to them within their exclusive
possession and control, shall take all necessary and prudent measures to
maintain the confidentiality of such materials and information, and shall not
permit unauthorized dissemination of such materials to anyone.

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b. Confidential Material shall not be disclosed in any way to anyone for any
purpose other than as required for the preparation of trial in this action or
other related actions as defined in Paragraph 10, below.

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i. Nothing in this Order shall preclude a Party from introducing into
evidence at trial or evidentiary hearing any Confidential Material that
is admissible under applicable law. The Parties shall meet and confer
regarding the procedures for use of Confidential Material at trial or
any evidentiary hearing and shall move the Court for entry of an
appropriate order. At trial or evidentiary hearings, the Court may take
such other measures or enter separate orders, as the Court deems
appropriate or upon request by any Party, to protect the claimed
Confidential Material sought to be introduced or admitted.

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c. Access to and disclosure of Confidential Material shall be limited to those
persons designated as Qualified Persons, below. Any Qualified Person who
examines any Confidential Material shall not disseminate orally, or by

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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any other means, any protected information other than as permitted by
this Order.

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d. Confidential Material shall not be used for any business, competitive or
other non-litigation purpose without the express written consent of counsel
for the Designating Party or by order of the Court.

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i. Nothing in this Protective Order shall limit any Designating Party’s
use of its own documents or shall prevent any Designating Party from
disclosing its own Confidential Material to any person for any
purpose.

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ii. Nothing herein shall prevent Plaintiffs from viewing or receiving and
retaining copies of their own medical records and from disclosing
such medical records to, and sharing them with, their physicians.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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iii. Nothing herein shall prevent Defendants from viewing or retaining
copies of medical records of Plaintiffs that are in their possession or
control or from disclosing such records to other Qualified Persons,
regardless of whether or not the documents have been designated as
Confidential Material.

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iv. Disclosures described in the above sub-paragraphs shall not affect any
confidential designation made pursuant to the terms of this Protective
Order so long as the disclosure is made in a manner that is reasonably
calculated to maintain the confidentiality of the designated
Information, Testimony, and/or Document.

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e. To avoid security risks inherent in certain current technologies and to
facilitate compliance with the terms of this Order, and unless otherwise
ordered or agreed upon in writing by the Designating Party whose
Confidential Material is at issue, all Qualified Persons with access to
Confidential Material shall comply with the following:

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i. They shall use secure means to store and transmit Confidential
Material whether stored or transmitted physically or electronically.

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ii. Qualified Persons shall be prohibited from storing or transmitting any
Confidential Material in or via any online or web-based storage
location or service managed or maintained outside the United States.
Any party using the services of a third-party service provider, shall
use a reputable litigation support service provider with a secure
domestic document hosting facility that uses encrypted web-enabled

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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software that allows for the secure and protected sharing and
collaboration of said Protected Material among Qualified Persons.

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iii. Notwithstanding the foregoing provision, Qualified Persons, as
defined in the following paragraph, shall not be prohibited from
transmitting Confidential Material to any other Qualified Person
through electronic mail, as attachments to an electronic mail in the
form of separate PDF files or zip files, through tools provided by a
reputable litigation support service as described herein, or via FTP file
transfer, as long as the person transmitting the Protected Material
takes reasonable steps to protect the confidentiality of the Confidential
Material.

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6.
Qualified Persons With respect to Confidential Material. Confidential
10 Material (as distinct from Confidential Material—Attorney Eyes Only, covered in
11 Paragraph 7 below) may be disclosed only to the following persons (referred to as
“Qualified Persons” throughout this Order):
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a. When produced by any defendant in the action: all other defendants, their
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inside and outside counsel and insurers, as applicable, the defendants’
employees (including partners, directors, and officers), and the Plaintiffsand
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their attorneys in the action;
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b. When produced by Plaintiffs: all defendants (including partners, directors,
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officers, and employees of defendants) and their inside and outside counsel
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and insurers;
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c. With respect to Qualified Persons encompassed by the preceding two
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paragraphs (a) and (b), such persons include the attorneys’ employees and
agents (e.g., outside copy services, organizations involved in organizing,
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filing, coding, converting, storing, or retrieving data or designing programs
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for handling data connected with this action, including the performance of
such duties in relation to a computerized litigation support system, and
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stenographers);
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d. Experts and consultants (“Consultants”) whose assistance is necessary to
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assist counsel in the preparation of this Proceeding, whether or not the
Consultant is designated as an expert and retained to testify, with the
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following qualifications:
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i. Disclosure shall not be made to any consultant who, as described in
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Paragraph 9, is employed by or a consultant to a competitor of the
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Designating Party;
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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ii. Disclosure shall not be made to any consultant if counsel for the Party
retaining that consultant has actual knowledge that the consultant has
been found to have violated the terms of a protective order in any
litigation or legal proceeding; and

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iii. Any expert or consultant to whom disclosure of Confidential Material
is authorized must be informed of this Protective Order and must sign
a copy of the Non-Disclosure Agreement attached hereto as Exhibit
“A.”

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e. A deponent or a witness at a deposition or pre-trial hearing, provided there is
a reasonable basis to believe that the witness will give relevant testimony
regarding the Confidential Material or that disclosure of Confidential
Material is necessary to prepare the witness for the testimony.

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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i. If a Party wishes to disclose Confidential Material to such a deponent
or witness during a deposition or pre-trial hearing, the deponent or
witness must be informed of this Protective Order and the fact that the
material is confidential. No Confidential Material may be left with
such a deponent or witness unless he or she has signed a copy of the
Non-Disclosure Agreement attached hereto as Exhibit A.

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ii. If a Party wishes to disclose Confidential Material to a treating
physician deponent before a deposition1, the treating physician must
be informed of this Protective Order and the fact that the material is
confidential. No Confidential Material may be left with the physician
deponent unless he or she has signed a copy of the Non-Disclosure
Agreement attached hereto as Exhibit A. The Parties expressly agree
that all documents shown to any treating physician witness by any
party (other than the provider’s own treatment records relating to the
patient) and all documents provided to any treating physician witness
by any party shall be disclosed to the other parties. The disclosure
should include the documents, cover letters, letters about scheduling
and letters about compensation to the treating physician. If the copies
shown to or provided to the treating physician have markings,

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25 1 The Parties expressly agree that this Protective Order is not intended to modify the
regularly applicable law regarding ex parte contact with any such treating physician.
26 Accordingly, Plaintiff is not consenting for Defendants to have ex parte contact with
treating physicians beyond what applicable law allows. Likewise, Defendants are not
27 agreeing that ex parte contact or sharing of Confidential Materials with a treating
physician is appropriate or permissible, and Defendants expressly reserve the right to
28 challenge any such contact or proposed sharing of Confidential Materials pursuant to this
paragraph on all bases other than the existence of this Protective Order.
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highlighting or tabs affixed to them, these should be disclosed. The
disclosure shall be within seven days after the document has been
shown to or provided to the treating physician, or at least 48 hours
before any deposition of the healthcare provider, whichever comes
first.

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iii. The Parties agree that this provision does not preclude the Designating
Party from objecting to or moving to preclude disclosure to any
deponent or witness, or to seek amendment of this provision in the
future, if it believes it has a good faith basis for such objection or
motion;

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f. A person identified in the Confidential Material as an author, source,
addressee, or recipient of the communication, or who already has a copy of
the Confidential Material;

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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g. Any mediators or arbitrators selected to assist in resolution of this matter,
and their personnel who are actively engaged in assisting them;

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h. The Court or any Court personnel, including any court reporters; and

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i. Any person mutually agreed upon among the Parties, provided that such
person has been informed of this Protective Order and has signed a copy of
the Non-Disclosure Agreement attached hereto as Exhibit “A.”

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7.
Qualified Persons With respect to Confidential Material—Attorney
Eyes Only.
Confidential Material—Attorney Eyes Only may be disclosed only to the
following Qualified Persons:

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a. Attorneys of record in this action, and their paralegals or their other
employees or agents (including litigation-support services) who require
access to Confidential Material—Attorney Eyes Only for the purpose of
litigation of this action;

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b. Plaintiffs, provided that their counsel believe in good faith that disclosure is
necessary to the prosecution of the action;

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c. Consultants who are Qualified Persons described in Paragraph 6.d and its
sub-paragraphs above;

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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d. A person identified in the Confidential Material—Attorney Eyes Only as an
author, source, addressee, or recipient of the communication, or who already
has a copy of the Confidential Material;

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e. Any mediators or arbitrators selected to assist in resolution of this matter,
and their personnel who are actively engaged in assisting them;

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f. The Court or any Court personnel, including any court reporters; and

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g. Any person mutually agreed upon among the Parties, provided that such
person has been informed of this Protective Order and has signed a copy of
the Non-Disclosure Agreement attached hereto as Exhibit “A.”

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8.

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Further Requirements With Respect to Qualified Persons.
a. Before being given access to any Confidential Material, each Qualified
Person, other than the Court, the employees and staff of the Court, counsel
of record, and the direct employees of counsel of record, and other than as
set forth above with respect to those witnesses to whom Confidential
Material is disclosed or shown at a deposition or pre-trial hearing as set forth
in Paragraph 6(e), shall be advised of the terms of this Order, shall be given
a copy of this Order, shall agree in writing to be bound by the terms of this
Order by signing a copy of the Non-Disclosure Agreement attached hereto
as Exhibit “A,” and shall consent to the exercise of personal jurisdiction by
this Court in any proceeding(s) to determine if the signatory violated this
Order. Counsel for each Party shall maintain a list of all Qualified Persons to
whom they or their client(s) have provided any Confidential Material, which
list shall be available for inspection by the Court.

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b. The witness who is a Qualified Person pursuant to Paragraph 6(e) but who
has not signed a copy of the Non-Disclosure Agreement attached hereto as
Exhibit “A” may be shown Confidential Material during his or her
testimony, but shall not be given a copy of the Confidential Material to keep.
Before reviewing his or her transcribed testimony containing the
Confidential Material for purposes of completing the errata sheet, such
witness shall sign a copy of the Non-Disclosure Agreement attached hereto
as Exhibit “A” and shall consent to the exercise of personal jurisdiction by
this Court in any proceeding(s) to determine if the signatory violated this
Order.

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c. Any Confidential Material distributed or disclosed to a Qualified Person
who is a signatory of Exhibit “A” shall be returned to the Party’s counsel
who provided it to the Qualified Person or shall be destroyed at the

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

completion of the Qualified Person’s consultation or representation in this
case. Upon the request of the Designating Party or the Court, each such
Qualified Person shall execute an affidavit stating that all such Confidential
Material and copies thereof have been returned or destroyed as required.

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d. The Court shall retain jurisdiction over any person or organization
authorized, as set forth above, to receive Confidential Material as necessary
to enforce the provisions of this Order.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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9.
Non-Disclosure to Competitors. Notwithstanding the foregoing, without
express written consent or court order, in no event shall any disclosure of a defendant’s
Confidential Material or Confidential Material—Attorney Eyes Only be made to any
known Competitor of that defendant or to any person who, upon reasonable and good
faith inquiry, could be determined to be a current employee thereof (whose job
responsibilities include work on medical treatments for diabetes mellitus) or consultant
doing research for a competitor of a designating defendant (whose research relates to
diabetes mellitus) irrespective of whether such consultant or person is retained as an
expert in this action. A “Competitor,” in the context of this Proceeding, shall mean any
manufacturer of, or manufacturer involved in the sale of, medications or other medical
treatments for diabetes mellitus or any current employee of such entity.
a. In the case of an expert or consultant, the expert or consultant is best suited
to know whether he or she is a Competitor of a defendant, or if he or she is a
current employee of or consultant doing research for a Competitor of the
designating defendant. Thus, Plaintiffs will be required by the Protective
Order to make a full inquiry of the expert or consultant and to obtain a
declaration from him or her on these topics before any information is shared
with the expert or consultant.

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b. To this end, the expert or consultant shall provide written certification
whether he or she is a Competitor of a defendant, whether he or she is
currently employed by a Competitor, and whether he or she is contracted
with a Competitor and doing research for such Competitor.

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c. Plaintiffs shall not disclose a defendant’s Confidential Material to any expert
or consultant who certifies that he or she is a Competitor of a defendant, is
currently employed by a Competitor, or is contracted with a Competitor and
doing research for such Competitor.

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d. Plaintiffs shall maintain each respective expert’s or consultant’s certification
under this paragraph for the duration of the litigation so they may be
submitted to the Court for in camera review in the event of a dispute
between the parties.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

10.

2

a. The Designating Party bears the burden of establishing confidentiality.

3

b. Nothing in this Order shall constitute a waiver of any Party’s right to object
to the designation or non-designation of Documents, Testimony, or
Information as Confidential Material.

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5

c. If a Party contends that any Document, Testimony, or Information has been
erroneously or improperly designated as Confidential Material, or has been
improperly redacted, the material at issue shall be treated as confidential
under the terms of this Order until

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i. the Parties reach a written agreement or

TUCKER ELLIS LLP

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

Challenges to Designations.

ii. this Court issues an order determining that the material is not
confidential and shall not be given confidential treatment.

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d. In the event that counsel for a Party receiving Confidential Material in
discovery objects to such designation, said counsel shall advise counsel for
the Designating Party, in writing, of such objections, the specific
Confidential Material (identified by Bates number, if possible) to which each
objection pertains, and the specific reasons and support for such objections
(the “Designation Objections”). There shall be no time limit for which Party
is to make such objections.

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e. Counsel for the Designating Party shall have 7 days from receipt of the
written Designation Objections to respond in writing as to whether the
designations will be maintained or withdrawn, provided that no more than
100 designations are challenged in any 30 day period.

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f. If Designating Party does not de-designate the challenged Confidential
Material at issue, the parties shall meet in confer in good faith, by phone or
in-person, to discuss the Designation Objections and attempt to resolve the
dispute.

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g. If, after meeting and conferring in good faith, the Parties are unable to
resolve the dispute regarding the Designation Objections or after 14 days
have passed since service of the Designation Objections, whichever comes
first, the Party challenging the designations may file a motion with the Court
seeking an order to de-designate (i.e., to rule to be not confidential) the
Confidential Material subject to the Designation Objections (the
“Designation Motion”).

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

i. Pending a resolution of the Designation Motion by the Court, the
Designating Party is presumed to have designated the Confidential
Material in good faith, and any and all existing designations
challenged in such Motion shall remain in place.

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ii. The Designating Party shall have the burden of establishing the
applicability of its “confidential” designation.

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iii. If there is no ruling on the Designation Motion within thirty (30) days,
the parties shall jointly move before the Court for a ruling.

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11. Use of Confidential Material in Court Prior to Trial. The Parties will use
the following procedure, absent further Court Order, for disclosing Confidential Material
9 to the Court prior to trial.
10
a. Confidential Material is not to be filed with the Court except when required
11
in connection with motions or other matters pending before the Court.
12
b. The Party seeking to file Confidential Material or a document reflecting or
including Confidential Material in support of a motion or other proceeding
13
pending before the Court may first notify the Designating Party of its intent
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and seek agreement to de-designate such material or otherwise consent to its
filing..
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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

8

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c. Absent any such agreement, if Confidential Material or a document
reflecting or including Confidential Material is submitted to or otherwise
disclosed to the Court in connection with a motion or other proceeding
pending before the Court, such Confidential Material shall be separately
filed under seal with the clerk of the Court in an envelope marked:
“CONFIDENTIAL – FILED UNDER SEAL PURSUANT TO
PROTECTIVE ORDER AND WITHOUT ANY FURTHER SEALING
ORDER REQUIRED” or CONFIDENTIAL—ATTORNEY EYES
ONLY – FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
AND WITHOUT ANY FURTHER SEALING ORDER REQUIRED to the
extent permitted by the rules of this Court. On the outside of the envelope, a
copy of the caption page of the applicable pleading shall be attached. No
Confidential Material, nor any part thereof, shall be included in such caption
page nor otherwise be revealed on the outside of the envelope.

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d. Once filed under seal, the Designating Party will comply with the Court’s
rules regarding sealing.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

e. When this litigation has concluded, the Clerk of Court may return to counsel
for the Designating Party, or may destroy, any Confidential Material filed
under seal pursuant to the provisions of this Order.

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12.

4

a. To protect against unauthorized disclosure of Confidential Discovery
Material, and to comply with all applicable state and federal laws and
regulations, the Producing Party may redact from produced documents,
materials and other things, the following items, or any other item(s)
protected from disclosure by statute or decisional authority or agreed upon
by the parties or ordered by the Court:

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i. The names, street addresses, Social Security numbers, tax
identification numbers, and other personal identifying information of
patients, health care providers, and individuals in clinical studies or
adverse event reports. Other general identifying information, however,
such as patient or health provider numbers, shall not be redacted
unless required by state or federal law.

TUCKER ELLIS LLP

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

Redactions

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ii. The Social Security numbers, tax identification numbers and other
personal identifying information of employees in any records.

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b. Defendants reserve the right to redact information that is nonresponsive
(including but not limited to proprietary financial material and products
unrelated to this litigation). Such responsiveness redactions may only be
applied to materials not discoverable pursuant to Federal Rule of Civil
Procedure 26(b)(1).

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c. Pursuant to 21 C.F.R. §§ 314.430(e) & (f) and 20.63(f), the names of any
person or persons reporting adverse experiences of patients and the names of
any patients that are not redacted shall be treated as Confidential, regardless
of whether the document containing such names is designated as
Confidential Material.

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d. Notwithstanding any of the foregoing provisions, nothing contained herein
shall be construed as a waiver of a party’s ability to challenge such
redactions pursuant to the procedures set forth in Section 11 herein. The
burden as to the propriety of any redaction remains on the Designating Party
at all times.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

13.

2

a. If another court or an administrative agency requests, subpoenas, or orders
the disclosure of Confidential Material from a Party that has obtained such
material under the terms of this Order, the Party so requested, subpoenaed,
or ordered shall notify the Designating Party by electronic mail transmission,
express mail, or overnight delivery to counsel of record for the Designating
Party not later than ten (10) days prior to producing or disclosing any
Confidential Material, and shall furnish such counsel with a copy of the
requests, subpoena, or order. The recipient of the Subpoena shall not
disclose any Confidential Material pursuant to the Subpoena prior to the date
specified for production on the Subpoena.

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b. Upon receipt of this notice, the Designating Party may, in its sole discretion
and at its own cost, move to quash or limit the request, subpoena, or order,
otherwise oppose the disclosure of the Confidential Material, or seek to
obtain confidential treatment of such Confidential Material, to the fullest
extent available under law, by the person or entity issuing the request,
subpoena, or order. The Party who received the request, subpoena, or order
shall not oppose or otherwise interfere with the Designating Party’s effort to
quash or limit the request, subpoena, or order.

TUCKER ELLIS LLP

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

Subpoena by Other Courts or by Agencies.

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14.

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Disposition of Confidential Material.
a. Upon the request of any Party after the final conclusion of this action
(including without limitation any appeals and after the time for filing all
appellate proceedings has passed), each Party so requested shall return all
Confidential Material to counsel for the Party that produced it, shall destroy
it, or otherwise shall comply with an applicable order of the Court, subject to
the exception described herein.

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b. The return or destruction of Confidential Material under this paragraph shall
include, without limitation, all copies, and duplicates thereof, including
copies on any litigation-support review application, which shall not be
considered work product for purposes of this paragraph.

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c. The Parties shall certify, within 60 days of receipt of a written request for
certification, that all Confidential Material required to be returned or
destroyed have been so returned or destroyed.

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d. As an exception to the above requirements, and unless otherwise ordered by
the Court, counsel may retain: (a) copies of pleadings or other papers that
have been filed with the Court and that are Confidential Material or that

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

reflect, reference, or contain Confidential Material; (b) their work product;
and (c) official transcripts and exhibits thereto. The terms and provisions of
this Order shall continue to apply to any such materials retained by counsel.

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3

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

15. Order Survives Termination of Action. After the termination of this action
4 by entry of a final judgment or order of dismissal, the provisions of this Order shall
5 continue to be binding. This Order is, and shall be deemed to be, an enforceable
agreement between the Parties, their agents, and their attorneys. The Parties agree that the
6 terms of this Order shall be interpreted and enforced by this Court.
7
16. No Waiver of Any Privilege Upon Inadvertent Production
8
a. The Parties have agreed that, in discovery in this lawsuit, they do not intend
9
to disclose information subject to a claim of attorney-client privilege or
attorney work product protection.
10
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i. This Order does not effect or constitute a waiver of any Party’s right
to withhold or redact information protected from disclosure by the
attorney-client privilege, physician-patient privilege, work product
doctrine, or any other applicable privilege, protection, law, or
regulation.

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ii. Pursuant to Federal Rule of Evidence 502(d) and Federal Rule of
Civil Procedure 26(b)(5)(B), the production or disclosure of any
discovery material that a Party (the “Disclosing Party”) thereafter
claims should not have been produced or disclosed based on privilege
or work product protections (“Inadvertently Disclosed Information”),
shall not constitute or be deemed a waiver or forfeiture in whole or in
part—in this or any other action— of any claim of attorney-client
privilege or work product immunity that the Disclosing Party would
otherwise be entitled to assert with respect to the Inadvertently
Disclosed Information and its subject matter regardless of the
circumstances of the production or disclosure. As set forth below,
such Inadvertently Disclosed material shall be returned to the
Producing Party or destroyed upon request.

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b. Attorney’s Ethical Responsibilities. Nothing in this order overrides any
attorney’s ethical responsibilities to refrain from examining or disclosing
materials that the attorney knows or reasonably should know to be privileged
and to inform the Disclosing Party that such materials have been produced.
Any party receiving materials that, on their face, appear to be covered by a
privilege, shall not copy, distribute, or otherwise use in any manner such
materials and shall provide prompt notice of the disclosure to the Producing

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

Party to afford the Producing Party the opportunity to request return of the
materials, in accordance with the terms of this paragraph.

2

c. If a Disclosing Party notifies the Receiving Party of Inadvertently Disclosed
Information, the Receiving Party shall, within ten (10) court days: (i) return
or destroy (or in the case of electronically stored information, delete) all
copies of such information (including all notes or other work product of the
Receiving Party reflecting the contents of the Inadvertently Disclosed
Information) within their possession, custody, or control—including all
copies in the possession of experts, consultants, or others to whom the
Inadvertently Disclosed Information was provided—and (ii) provide a
certification of counsel that all such Inadvertently Disclosed Information has
been returned or destroyed. From the moment a Disclosing Party provides
notice of inadvertent production, a Receiving Party shall not copy, distribute,
or otherwise use in any manner the disputed documents or information, and
shall instruct all persons to whom the Receiving Party has disseminated a
copy of the documents or information that the documents or information are
subject to this Order and may not be copied, distributed, or otherwise used
pending a motion and further notice from the Court. For purposes of this
Order, Protected Information that has been stored by the Receiving Party on
a source of electronically stored information that is not reasonably
accessible, such as backup storage media, is sequestered. If such data is
retrieved, the Receiving Party must promptly take steps to delete the restored
protected information.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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d. If the Receiving Party contests the claim of attorney-client privilege or work
product protection, the Producing Party shall—within thirty (30) business
days of receipt of the notice of disclosure—move the Court for a Protective
Order requiring return of the production of the Inadvertently Disclosed
Information (“Motion”). The Receiving Party shall not assert as a ground for
opposing such an Order the fact or circumstances of the inadvertent
production. Pending resolution of the Motion, the Receiving Party must not
use the challenged information in any way or disclose it to any person other
than those required by law to be served with a copy of the sealed Disclosure
Motion. On any such Motion, the Disclosing Party shall retain the burden of
establishing its privilege or work product claims. Nothing in this paragraph
shall limit the right of any Party to petition the Court for an in camera
review of the Inadvertently Disclosed Information.

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e. Rule 502(b). The provisions of Federal Rule of Evidence 502(b) are
inapplicable to the production of Protected Information under this Order.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

17.

2

a. Inadvertent or unintentional disclosure, without the required confidentiality
designation, of any Document, Testimony, or Information that the
Disclosing Party intended to designate as Confidential Material
(“inadvertent production”) shall not be deemed a waiver in whole or in part
of the producing Party’s claim of confidentiality, either as to specific
documents and information disclosed or as to the same or related subject
matter.

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b. In the event that a Designating Party makes such an inadvertent production,
that Party shall contact the receiving Party within 30 days of the discovery of
the inadvertent production, or as promptly as reasonably possible thereafter,
and inform the receiving Party or Parties in writing of the inadvertent
production and the specific material at issue.

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TUCKER ELLIS LLP

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

Inadvertent Production or Disclosure of Confidential Material.

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c. Upon receipt of such notice, the receiving Party or Parties shall treat the
material identified in the notice as confidential until (i) the Parties agree to
non-confidential treatment of the subject material, or (ii) the Court, on
motion of any Party, issues an order addressing the appropriate treatment of
the subject material.

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d. Within ten court days of receiving notice of the inadvertently disclosed
Confidential Material, the receiving Party shall return or destroy all copies
of such Confidential Material and provide a certification of counsel that all
such Confidential Material has been returned or destroyed. Each receiving
Party shall notify every person or organization that received copies of or
access to the material identified in the notice that such material contains
Confidential Material.

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e. As promptly as reasonably possible thereafter, the Disclosing Party shall reproduce the Confidential Material with the required legend.

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18. Nothing in this Order shall be construed to circumvent any applicable law,
23 statute, or rule of federal civil procedure.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1
2

DATED: April 27, 2016

TUCKER ELLIS LLP
By: /s/ Joshua J. Wes
Joshua J. Wes
515 South Flower Street, 42nd Floor
Los Angeles, CA 90071-2223
Tel.: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Defendants Janssen Research &
Development LLC, Janssen Pharmaceuticals,
Inc., Janssen Ortho, LLC and Johnson &
Johnson

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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11 DATED: April 27, 2016
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By: /s/ Justin R. Kaufman
Justin R. Kaufman
505 Cerrillos Rd., Suite A209
Santa Fe, NM 87501
Tel.: [phone]
Fax: [phone]
Email: [e-mail]
Olga Viner
808 Wilshire Boulevard Suite 450
Santa Monica, CA 90401
Tel.: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Plaintiff Loris Furlow

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HEARD ROBINS CLOUD, LLP

IT IS SO ORDERED

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DATED: May 2, 2016

__________________________________
UNITED STATES MAGISTRATE JUDGE

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

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UNITED STATES DISTRICT COURT

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION
LORIS FURLOW,
Plaintiff,

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v.
JANSSEN RESEARCH &
DEVELOPMENT L.L.C. f/k/a/
JOHNSON & JOHNSON
PHARMACEUTICAL RESEARCH AND
DEVELOPMENT L.L.C.; JOHNSON &
JOHNSON; JANSSEN
PHARMACEUTICALS, INC. f/k/a
ORTHO-MCNEIL-JANSSEN
PHARMACEUTICALS, INC.; JANSSEN
ORTHO L.L.C.; MITSUBISHI TANABE
PHARMA CORPORATION; AND JOHN
DOES 1-50, Defendants
Defendants.

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)
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Case No. 2:16-cv-01386-JAK (RAOx)
Hon. John A. Kronstadt
EXHIBIT A – ENDORSEMENT OF
PROTECTIVE ORDER

EXHIBIT A
ENDORSEMENT OF PROTECTIVE ORDER

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I hereby attest to my understanding that information or documents designated as
27 Confidential Discovery Material are provided to me subject to the Protective Order dated
______________, 2016 (the “Order”), in the above-captioned litigation (“Litigation”);
28 that I have been given a copy of and have read the Order; and, that I agree to be bound by
its terms. I also understand that my execution of this Endorsement of Protective Order,
[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1 indicating my agreement to be bound by the Order, is a prerequisite to my review of any
2 information or documents designated as Confidential Discovery Material pursuant to the
Order.
3
I further agree that I shall not disclose to others, except in accord with the Order,
4
any Confidential Discovery Material, in any form whatsoever, and that such Confidential
5 Discovery Material may be used only for the purposes authorized by the Order.

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

6

I further agree to return all copies of any Confidential Discovery Material or any
7 document or thing containing Confidential Discovery Material I have received to counsel
8 who provided them to me, or to destroy such materials, upon completion of the purpose
for which they were provided and no later than the conclusion of this Litigation.
9
I further agree and attest to my understanding that my obligation to honor the
10
confidentiality of such Confidential Discovery Material will continue even after this
11 Litigation concludes.
12
I further agree and attest to my understanding that, if I fail to abide by the terms of
13 the Order, I may be subject to sanctions, including contempt of court, for such failure. I
14 agree to be subject to the jurisdiction of the Central District of California, for the
purposes of any proceedings relating to enforcement of the Order. I further agree to be
15 bound by and to comply with the terms of the Order as soon as I sign this Agreement,
16 regardless of whether the Order has been entered by the Court.
17
18 Date: ___________________________
19 By:
20

___________________________

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2
[PROPOSED] STIPULATED PROTECTIVE ORDER
1157180.1

1

CERTIFICATE OF SERVICE

2

I, Cynthia M. Harris, declare that I am a citizen of the United States and a resident
of Los Angeles, California or employed in the County of Los Angeles, State of
3 California. I am over the age of 18 and not a party to the within action. My business
4 address is Tucker Ellis LLP, 515 South Flower Street, Forty-Second Floor, Los Angeles,
California 90071-2223.
5
On April 27, 2016, I served the following: [PROPOSED] STIPULATED
6 PROTECTIVE ORDER on the interested parties in this action by:
7 (X)
8
9

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

10

ELECTRONICALLY VIA ECF: the above-entitled document to be served
electronically through the United States District Court, Southern District ECF
website, addressed to all parties appearing on the Court’s ECF service list. A copy
of the “Filing Receipt” page will be maintained with the original document in our
office.

12

I declare that I am employed in the office of the Bar of this Court at whose
direction the service was made. I declare under penalty of perjury under the laws
of the United States of America that the foregoing is true and correct.

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Executed on April 27, 2016, at Los Angeles, California.

11

(X)

14
/s/ Cynthia M. Harris
Cynthia M. Harris

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CERTIFICATE OF SERVICE
1157180.1