DexCom, Inc. v. AgaMatrix, Inc.

Filing 79

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Amended Stipulation for Protective Order 78 . (See document for complete details) (afe)

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SONA DE (SBN#193896)
[e-mail]
CHING-LEE FUKUDA (admitted pro hac vice)
[e-mail]
BRADFORD J. BADKE (admitted pro hac vice)
[e-mail]
GRACE CHIANG (admitted pro hac vice)
[e-mail]
SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]
THOMAS A. BROUGHAN (admitted pro hac vice)
[e-mail]
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
Telephone: [phone]
Facsimile: [phone]
ERIK J. CARLSON (SBN #265167)
[e-mail]
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff, Dexcom, Inc.

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M. JOHN CARLSON (SBN #41285)
[e-mail]
DREW WILSON (SBN #283616)
[e-mail]
LEWIS ROCA ROTHGERBER CHRISTIE LLP
655 North Central Avenue, Suite 2300
Glendale, CA 91203-1445
Telephone: [phone]
Facsimile: 626.795.577.8800
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PROPOSED STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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SCOTT D. EADS, (admitted pro hac vice)
[e-mail]
NICHOLAS F. ALDRICH, JR.,(admitted pro hac vice)
[e-mail]
JASON A. WRUBLESKI, (admitted pro hac vice)
[e-mail]
SCHWABE, WILLIAMSON & WYATT, P.C.
1211 SW 5th Ave., Suite 1900
Portland, OR 97204
Telephone: [phone]
Facsimile: 503.796.2900

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Attorneys for Defendant, AgaMatrix, Inc.

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DEXCOM, INC.,

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Plaintiff,

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Case No.: 2:16-cv-5947 SJO (ASx)
AMENDED STIPULATED
PROTECTIVE ORDER

v.

Judge:
Hon. S. James Otero
Magistrate: Hon. Alka Sagar

AGAMATRIX, INC.,

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Defendant.

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1.

A.

PURPOSES AND LIMITATIONS

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

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proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does

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not confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable
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legal principles. The parties further acknowledge, as set forth in Section 12.5, below,
that this Stipulated Protective Order does not entitle them to file confidential
information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
followed and the standards that will be applied when a party seeks permission from
the court to file material under seal.
B.

GOOD CAUSE STATEMENT

This action is likely to involve trade secrets, customer and pricing lists and
other valuable research, development, commercial, financial, technical and/or
proprietary information for which special protection from public disclosure and from
use for any purpose other than prosecution of this action is warranted. Such
confidential and proprietary materials and information consist of, among other things,
confidential business or financial information, information regarding confidential
business practices, or other confidential research, development, or commercial
information (including information implicating privacy rights of third parties and
source code), information otherwise generally unavailable to the public, or which may
be privileged or otherwise protected from disclosure under state or federal statutes,
court rules, case decisions, or common law. Accordingly, to expedite the flow of
information, to facilitate the prompt resolution of disputes over confidentiality of
discovery materials, to adequately protect information the parties are entitled to keep
confidential, to ensure that the parties are permitted reasonable necessary uses of such
material in preparation for and in the conduct of trial, to address their handling at the
end of the litigation, and serve the ends of justice, a protective order for such
information is justified in this matter. It is the intent of the parties that information
will not be designated as confidential for tactical reasons and that nothing be so
designated without a good faith belief that it has been maintained in a confidential,
non-public manner, and there is good cause why it should not be part of the public
record of this case.

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2. DEFINITIONS
2.1.

Action: The above-captioned federal law suit.

2.2.

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

of information or items under this Order.
2.3.

"CONFIDENTIAL" Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for protection
under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
Cause Statement.
2.4.

"HIGHLY CONFIDENTIAL—ATTORNEYS' EYES ONLY"

Information or Items: documents detailing financial information, customer names
and/or vendor names.
2.5.

"HIGHLY CONFIDENTIAL— HIGHLY CONFIDENTIAL –

OUTSIDE ATTORNEYS' EYES ONLY" Information or Items: documents detailing
non-public technical aspects of a party's products, processes or methods including
documents related to product designs, specifications, manufacturing methods or
processes, product testing, and documents related to future business plans, including
information pertaining to products in development that have not yet been released.
2.6.

"HIGHLY CONFIDENTIAL—SOURCE CODE" Information or Items:

extremely sensitive confidential information or items representing computer code and
associated comments and revision histories, formulas, engineering specifications, or
schematics that define or otherwise describe in detail the algorithms or structure of
software or hardware designs, disclosure of which to another party or non-party would
create a substantial risk of serious harm that could not be avoided by less restrictive
means, provided that any document or thing receiving this designation must contain at
least some source code (i.e. computer instructions) that can be compiled, interpreted,
or executed by a computer. Any document that only partially contains source code
(i.e. computer instructions) that can be compiled, interpreted, or executed by a

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computer must be produced with said source code redacted to the receiving party with
a designation appropriate for the remainder of the document, and the complete
unredacted version of said document shall be made available to the receiving party
and treated pursuant to the provisions herein pertaining to source code.
2.7.

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

support staff).
2.8.

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

items that it produces in disclosures or in responses to discovery as
"CONFIDENTIAL."
2.9.

Disclosure or Discovery Material: all items or information, regardless of

the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
2.10. Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve as an
expert witness or as a consultant in this Action.
2.11. House Counsel: attorneys who are employees of a party to this Action.
House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.12. Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.13. Outside Counsel of Record: attorneys who are not employees of a party
to this Action but are retained to represent or advise a party to this Action and have
appeared in this Action on behalf of that party or are affiliated with a law firm which
has appeared on behalf of that party, and includes support staff.
2.14. Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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

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2.16. Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.

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2.17. Protected Material: any Disclosure or Discovery Material that is
designated as "CONFIDENTIAL, " "HIGHLY CONFIDENTIAL—ATTORNEYS'
EYES ONLY," "HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES
ONLY" or "HIGHLY CONFIDENTIAL—SOURCE CODE."

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2.18. Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

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3.

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The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or extracted
from Protected Material; (2) all copies, excerpts, summaries, or compilations of
Protected Material; and (3) any testimony, conversations, or presentations by Parties
or their Counsel that might reveal Protected Material.

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SCOPE

Any use of Protected Material at trial shall be governed by the orders of the trial
judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations

imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
or without prejudice; and (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1.

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection
under this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items, or oral or written
communications that qualify so that other portions of the material, documents, items,
or communications for which protection is not warranted are not swept unjustifiably
within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to impose
unnecessary expenses and burdens on other parties) may expose the Designating Party
to sanctions.
If it comes to a Designating Party's attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2.

Manner and Timing of Designations. Except as otherwise provided in

this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material that
qualifies for protection under this Order must be clearly so designated before the
material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

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

documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix at a minimum, one of the legends
"CONFIDENTIAL, " "HIGHLY CONFIDENTIAL—ATTORNEYS' EYES ONLY,"
"HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY" OR
"HIGHLY CONFIDENTIAL—SOURCE CODE" (collectively "Legend"), as
appropriate, to each page that contains protected material. If only a portion or portions
of the material on a page qualifies for protection, the Producing Party also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins).
A Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has indicated
which documents it would like copied and produced. During the inspection and before
the designation, all of the material made available for inspection shall be deemed
"HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY." After the
inspecting Party has identified the documents it wants copied and produced, the
Producing Party must determine which documents, or portions thereof, qualify for
protection under this Order. Then, before producing the specified documents, the
Producing Party must affix a "Legend" to each page that contains Protected Material.
If only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
(b)

for testimony given in depositions, within twenty-one (21) days after

receipt of the final transcript of the deposition of any party or witness in this case, a
party or the witness may designate as "CONFIDENTIAL," "HIGHLY
CONFIDENTIAL—ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL—

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OUTSIDE ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL—
SOURCE CODE" any portions of the transcript that the party or witness contends
discloses confidential information. Any question or testimony which describes or
discusses a document which has been designated "CONFIDENTIAL," "HIGHLY
CONFIDENTIAL—ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL—
OUTSIDE ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL—
SOURCE CODE" shall also be deemed designated "CONFIDENTIAL," "HIGHLY
CONFIDENTIAL—ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL—
OUTSIDE ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL—
SOURCE CODE" as appropriate. If a transcript, or any portion(s) thereof, containing
any such material is filed with the Court, it shall be filed under seal and marked in the
manner described in subparagraph 5.2. Unless otherwise agreed, all deposition
transcripts shall be treated as "HIGHLY CONFIDENTIAL—OUTSIDE
ATTORNEYS' EYES ONLY" until the expiration of the twenty-one-day period.

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(c)

any other tangible items, that the Producing Party affix a Legend in a prominent place
on the exterior of the container or containers in which the information is stored. If
only a portion or portions of the information warrants protection, the Producing Party,
to the extent practicable, shall identify the protected portion(s).

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for information produced in some form other than documentary and for

5.3.

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

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

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

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6.2.

resolution process under Local Rule 37.1 et seq.

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Meet and Confer. The Challenging Party shall initiate the dispute

6.3.

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

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

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

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

disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending, or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the Action has been terminated, a Receiving
Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2.

Disclosure of "CONFIDENTIAL" Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated "CONFIDENTIAL"
only to:
(a)

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

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as employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this Action;
(b)

five (5) officers, directors, and employees (including House Counsel) of

the Receiving Party to whom disclosure is reasonably necessary for this Action and
who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(c)

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

disclosure is reasonably necessary for this Action and who have signed the
"Acknowledgment and Agreement to Be Bound" (Exhibit A);
(d)

the court and its personnel;

(e)

court reporters and their staff;

(f)

professional jury or trial consultants, mock jurors, and Professional

Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(g)

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

custodian or other person who otherwise possessed or knew the information;
(h)

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

Action to whom disclosure is reasonably necessary provided: (1) the deposing party
requests that the witness sign an acknowledgement of the protective order; and (2)
they will not be permitted to keep any confidential information unless they sign the
"Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise agreed
by the Designating Party or ordered by the court. Pages of transcribed deposition
testimony or exhibits to depositions that reveal Protected Material may be separately
bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order; and
(i)

any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.
7.3.

Disclosure of "HIGHLY CONFIDENTIAL—ATTORNEYS' EYES

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ONLY" information or items. Unless otherwise ordered by the court or permitted in
writing by the Designating Party, a Receiving Party may disclose any information or
item designated "HIGHLY CONFIDENTIAL—ATTORNEYS' EYES" only to
persons listed in subparagraphs 7.2(a), in-house counsel included in 7.2(b), and 7.2(c)(h), unless additional persons are stipulated by counsel or authorized by the Court.
7.4.

Disclosure of "HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS'

EYES ONLY" and "HIGHLY CONFIDENTIAL—SOURCE CODE" information or
items. Unless otherwise ordered by the court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated
"HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES" only to persons
listed in subparagraphs 7.2(a) and 7.2(c)-(h), unless additional persons are stipulated
by counsel or authorized by the Court.
7.5.

No later than ten (10) days prior to disclosure of any Protected Material

to persons listed in subparagraphs 7.2(b) and 7.2(c), the party intending to disclose
such information shall provide to the designating party the identities and roles of the
persons to whom such disclosure will be made, along with a copy of their current
Curriculum Vitae, so that the designating party may object to the disclosure and/or
seek relief from the Court, as appropriate.
7.6.

Absent written consent from the Producing Party, any individual who

receives access to "HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS' EYES
ONLY" or "HIGHLY CONFIDENTIAL—SOURCE CODE" information shall not be
involved in the prosecution of patents or patent applications pertaining to the fields of
invention of the patents-in-suit, including without limitation the patents asserted in
this action and any patent or application claiming priority to or otherwise related to the
patents asserted in this action, before any foreign or domestic agency, including the
United States Patent and Trademark Office ("the Patent Office"). To avoid ambiguity,
the field of the invention is glucose monitoring, and further specifically includes

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devices with single-use test strips for monitoring glucose levels. To ensure compliance
with the purpose of this provision, each Party shall put into place a screen sufficient to
ensure that persons involved in prosecution, as described above, shall not have direct
or indirect access to any documents or information designated under this Protective
Order as "HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS' EYES ONLY" or
"HIGHLY CONFIDENTIAL—SOURCE CODE." For purposes of this
subparagraph, "prosecution" includes directly or indirectly drafting, amending,
advising, or otherwise affecting the scope or maintenance of patent claims. To avoid
any doubt, "prosecution" as used in this subparagraph does not include representing a
party in a proceeding involving a challenge to a patent before a domestic or foreign
agency (including, but not limited to, a reissue protest, ex parte reexamination, inter
partes reexamination, post grant review, or inter partes review). This "Prosecution
Bar" set forth in this section shall begin when access to "HIGHLY CONFIDENTIAL
– OUTSIDE ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL—
SOURCE CODE" information of a technical nature is first received by the affected
individual and shall end two (2) years after final termination of this action. This
section shall not serve as a Prosecution Bar with respect to an individual who
inadvertently is sent or receives materials marked "HIGHLY CONFIDENTIAL –
OUTSIDE ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL—
SOURCE CODE" where that individual has not been exposed to the contents of the
inadvertently sent documents.
7.7.

To the extent production of source code becomes necessary in this case, a

producing party may designate source code as "HIGHLY CONFIDENTIAL—
SOURCE CODE" if it comprises or includes confidential, proprietary or trade secret
source code as set forth in subparagraph 2.6. This subparagraph governs issues and
procedures unique to such information.
(a)

Material designated as "HIGHLY CONFIDENTIAL—SOURCE

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CODE" shall be subject to all of the protections afforded to "HIGHLY
CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY" information, including
the Prosecution Bar set forth in subparagraph 7.6, and may be disclosed only to the
individuals to whom "HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES
ONLY" information may be disclosed, as set forth in subparagraph 7.4.

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(b)

Any source code produced in discovery shall be made available for

inspection, in a format allowing it to be reasonably reviewed and searched, during
normal business hours or at other mutually agreeable times, at an office of the
producing party's counsel or another mutually agreed-upon location. The source code
shall be made available for inspection on a secured computer in a secured room
without Internet access or network access to other computers, and the receiving party
shall not copy, remove, or otherwise transfer any portion of the source code onto any
recordable media or recordable device. The receiving party may bring computers and
mobile phones into the secure room in order to take notes that would be permitted if
taken using pen and paper, and make calls, provided that the receiving party does not
use any computer or mobile phone for a prohibited purpose including those identified
in the preceding sentence. Any computer or mobile phone brought into the secure
room must have its camera deactivated or physically obscured (e.g. by black electrical
tape provided by the receiving party). The producing party may visually monitor the
activities of the receiving party's representatives during any source code review, but
only to ensure that there is no unauthorized recording, copying, or transmission of the
source code.
(c)

The receiving party may request paper copies of limited portions

of source code that are reasonably necessary for the preparation of court filings,
pleadings, expert reports, or other papers, or for deposition or trial, but shall not
request paper copies for the purposes of reviewing the source code other than
electronically as set forth in paragraph (b) in the first instance. The producing party

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shall provide all such source code in paper form including Bates numbers and the
legend "HIGHLY CONFIDENTIAL—SOURCE CODE." The producing party may
challenge the amount of source code requested in hard copy form pursuant to the
dispute resolution procedure set forth in section 6, whereby the producing party is the
"challenging party" and the receiving party is the "designating party" for purposes of
dispute resolution.

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(d)

has inspected any portion of the source code in electronic or paper form. The
receiving party shall maintain all paper copies of any printed portions of the source
code in a secured, locked area. The receiving party shall not create any electronic or
other images of the paper copies and shall not convert any of the information
contained in the paper copies into any electronic format. The receiving party shall
only make additional paper copies if such additional copies are (1) necessary to
prepare court filings, pleadings, or other papers (including a testifying expert's expert
report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of
its case. Any paper copies used during a deposition shall be retrieved by the
producing party at the end of each day and must not be given to or left with a court
reporter or any other unauthorized individual.

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The receiving party shall maintain a record of any individual who

7.8.

Whenever Protected Material is to be discussed by a party or disclosed in

a deposition, hearing, or pre-trial proceeding, the designating party may exclude from
the room any person, other than persons designated in subparagraph 7.2, as
appropriate, for that portion of the deposition, hearing or pre-trial proceeding.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this Action as

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PROPOSED STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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"CONFIDENTIAL," that Party must:

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a)

include a copy of the subpoena or court order;

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b)

order is subject to this Protective Order. Such notification shall include a copy of this
Stipulated Protective Order; and
c)

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cooperate with respect to all reasonable procedures sought to be pursued

by the Designating Party whose Protected Material may be affected.

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

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

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promptly notify in writing the Designating Party. Such notification shall

If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this
action as "CONFIDENTIAL" before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party's
permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this Action to
disobey a lawful directive from another court.

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9.

A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

IN THIS LITIGATION
(a)

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

Party in this Action and designated as "CONFIDENTIAL." Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.
(b)

In the event that a Party is required, by a valid discovery request, to

produce a Non-Party's confidential information in its possession, and the Party is

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CASE NO.: 2:16-cv-05947-SJO-AS

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subject to an agreement with the Non-Party not to produce the Non-Party's
confidential information, then the Party shall:

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(1)

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

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(2)

specific description of the information requested; and
(3)

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make the information requested available for inspection by the

Non-Party, if requested.

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promptly provide the Non-Party with a copy of the Stipulated

Protective Order in this Action, the relevant discovery request(s), and a reasonably

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promptly notify in writing the Requesting Party and the Non-Party

(c)

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

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

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
persons to whom unauthorized disclosures were made of all the terms of this Order,
and (d) request such person or persons to execute the "Acknowledgment and

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PROPOSED STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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Agreement to Be Bound" that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
parties may incorporate their agreement in the stipulated protective order submitted to
the court. If the claim is disputed, a single copy of the materials may be retained by
the requesting party for the exclusive purpose of seeking a judicial determination of
the matter pursuant to Fed. R. Civ. P. 26(b)(5)(B) and Fed. R. Evid. 502.
The receiving party or its counsel shall not disclose such documents, materials,
or information if, but for the absence of the confidentiality designation, that party or
counsel reasonably should know or believe that the producing party intended to
maintain the documents, materials, or information in question as confidential.
Promptly after receiving notice from the producing party of a claim of confidentiality,
and upon request, the receiving party or its counsel shall inform the producing party of
all pertinent facts relating to the prior disclosure, if any, of the mis-designated
documents or materials, and shall make reasonable efforts to retrieve such documents
and materials and to prevent further disclosure.

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PROPOSED STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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12.

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12.1.

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

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12.3. Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5. Protected Material may
only be filed under seal pursuant to a court order authorizing the sealing of the
specific Protected Material at issue. If a Party's request to file Protected Material
under seal is denied by the court, then the Receiving Party may file the information in
the public record unless otherwise instructed by the court.

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

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

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5

MISCELLANEOUS

12.4. E-mail is acceptable for any notification purposes herein, provided that
the email notification is sent with a request that the receiving party acknowledge
receipt of said notice. E-mail notification to Dexcom shall be sent to
[e-mail]. E-mail notification to AgaMatrix shall be
sent to [e-mail] and [e-mail].

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13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 30

days of a written request by the Designating Party, each Receiving Party must return
all Protected Material to the Producing Party or destroy such material. As used in this
subdivision, "all Protected Material" includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected
Material. Returned materials shall be delivered in sealed envelopes marked

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PROPOSED STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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"Confidential" to respective counsel. The party requesting the return of materials
shall pay the reasonable costs of responding to its request. Notwithstanding the
foregoing, counsel for a party may retain an archival copy of confidential documents.
Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or
entity, to the Designating Party) by the 30 day deadline that (1) identifies (by
category, where appropriate) all the Protected Material that was returned or destroyed
and (2)affirms that the Receiving Party has not retained any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any of the
Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
legal memoranda, correspondence, deposition and trial exhibits, expert reports,
attorney work product, and consultant and expert work product, even if such materials
contain Protected Material. Any such archival copies that contain or constitute
Protected Material remain subject to this Protective Order as set forth in Section 4
(DURATION).

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14.

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

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

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PROPOSED STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated this 22nd day of February, 2017

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By: /s/ Sona De__
SONA DE (SBN#193896)
CHING-LEE FUKUDA (pro hac vice)
BRADFORD J. BADKE (pro hac vice)
GRACE CHIANG (pro hac vice)
THOMAS A. BROUGHAN (pro hac vice)
ERIK J. CARLSON (SBN #265167)
SIDLEY AUSTIN LLP
Attorneys for Plaintiff Dexcom, Inc.

By: /s/ Jason A. Wrubleski
_____
M. JOHN CARLSON (SBN #41285)
DREW WILSON (SBN #283616)
LEWIS ROCA ROTHGERBER
CHRISTIE LLP
Scott D. Eads, OSB #910400
Nicholas F. Aldrich, Jr., OSB #160306
Jason A. Wrubleski, OSB #120524
SCHWABE, WILLIAMSON
& WYATT, P.C.
Attorneys for Defendant AgaMatrix, Inc.

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The filer attests that all other signatories listed, on whose behalf this filing is
submitted, concur in the filing's content and have authorized filing.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: _______________________
February 23, 2017

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/s/

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Honorable Alka Sagar

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United States Magistrate Judge

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PROPOSED STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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DEXCOM, INC.,

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WESTERN DIVISION
Case No.: 2:16-cv-5947 SJO (ASx)

Plaintiff,

STIPULATED PROTECTIVE
ORDER

v.

Judge:
Hon. S. James Otero
Magistrate: Hon. Alka Sagar

AGAMATRIX, INC.,
Defendant.

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury that

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I have read in its entirety and understand the Stipulated Protective Order that was

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issued by the United States District Court for the Central District of California on

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[date] in the case of Dexcom, Inc. v. AgaMatrix, Inc., Case No. 16-cv-5947-SJO (ASx).

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I agree to comply with and to be bound by all the terms of this Stipulated Protective

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Order and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to this Stipulated

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Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I acknowledge that any improper or unauthorized disclosure or use of any

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"CONFIDENTIAL," "HIGHLY CONFIDENTIAL—ATTORNEYS' EYES ONLY,"

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"HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS' EYES ONLY" or

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"HIGHLY CONFIDENTIAL—SOURCE CODE" information in any manner

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STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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contrary to the provisions of the Protective Order will cause the disclosing party
irreparable harm for which monetary damages are an inadequate remedy, and therefor
in the event of any such disclosure or use the disclosing party shall be entitled to
equitable relief against me, including specific performance and injunctive relief,
without the requirement of posting bond or other security.

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I further agree to submit to the jurisdiction of the United States District Court
for the Central District of California for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action. I hereby appoint __________________________ [print or
type full name] of _______________________________________ [print or type full
address and telephone number] as my California agent for service of process in
connection with this action or any proceedings related to enforcement of this
Stipulated Protective Order.

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I disclose the following companies for whom I have worked, whether as an
employee, independent contractor or consultant, in the field of glucose sensing
systems or devices, including sensors for CGM devices and methods of manufacturing
and/or using same:

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.
//
//
I hereby agree that, to the extent I am retained or employed by any company to
perform services related to glucose sensing systems or devices during the pendency of
the above-captioned litigation, that I will immediately disclose that information to the
Parties.

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STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS

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I declare under penalty of perjury that the foregoing is true and correct.

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Date: ______________________________________
City and State where sworn and signed: _________________________________
Printed name: _______________________________

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STIPULATED PROTECTIVE ORDER

CASE NO.: 2:16-cv-05947-SJO-AS