Akeso Health Sciences, LLC v. Designs for Health, Inc.

Filing 42

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh. SEE ORDER. (im)

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Douglas G. Muehlhauser (SBN 179495)
[e-mail]
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street
Fourteenth Floor
Irvine, CA 92614
Phone:
[phone]
Facsimile: [phone]
Peter W. Peterson
David R. Pegnataro
[e-mail]
DeLIO, PETERSON & CURCIO, LLC
700 State Street, Suite 402
New Haven, Connecticut 06511
Phone:
[phone]
Facsimile: [phone]

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Attorneys for Defendant

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DESIGNS FOR HEALTH, INC.

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IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
AKESO HEALTH SCIENCES, LLC )
) Case No. 2:16-cv-07749 SJO (PJWx)
Plaintiff,
)
STIPULATED PROTECTIVE
)
ORDER
vs.
)
)
DESIGNS FOR HEALTH, INC,
)
)
)
Defendant
)
)
)
)

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PURPOSES AND LIMITATIONS

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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

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court

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to enter the following Stipulated Protective Order. The parties acknowledge that

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this Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth

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in Section 12.3, below, that this Stipulated Protective Order does not entitle them

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to file confidential information under seal; Civil Local Rule 79-5 sets forth the

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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.
I.

GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, customer and pricing lists and
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other valuable research, development, commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and

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from use for any purpose other than prosecution of this action is warranted. Such
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confidential and proprietary materials and information consist of, among other
things, confidential business or financial information, information regarding
patents or formulations of dietary supplements and homeopathic remedies,

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information regarding confidential business practices, or other confidential
research, development, or commercial information (including information
implicating privacy rights of third parties), information otherwise generally

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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

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resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the

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parties are permitted reasonable necessary uses of such material in preparation for

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and in the conduct of trial and settlement discussions, to address their handling at

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the end of the litigation, and serve the ends of justice, a protective order for such

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information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in

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a confidential, non-public manner, and there is good cause why it should not be

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part of the public record of this case.

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II.

DEFINITIONS
2.1

Action. The pending lawsuit styled Akeso Health Sciences, LLC v.

Designs For Health, Inc., with case number 2:16-cv-07749 SJO (PJWx).

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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

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how it is generated, stored or maintained) or tangible things that are not

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designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and that

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qualify for protection under Federal Rule of Civil Procedure 26(c), and as

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specified above in the Good Cause Statement.
2.4

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

Items: information (regardless of how it is generated, stored or maintained) or

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tangible things the disclosure of which the Producing Party reasonably believes
would cause severe harm and/or competitive detriment to the Producing Party and
that qualify for protection under Federal Rule of Civil Procedure 26(c), and as

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specified above in the Good Cause Statement. The designation CONFIDENTIAL
– ATTORNEYS EYES ONLY may be used only for the following: (1) sensitive
technical information, including current research, development and

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manufacturing information and patent prosecution information, (2) sensitive
business information, including highly sensitive financial or marketing

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information and the identity of suppliers, distributors and potential or actual
customers, (3) competitive technical information, including technical analyses or
comparisons of competitor’s products, (4) competitive business information,

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including non-public financial or marketing analyses or comparisons of
competitor’s products and strategic product planning, or (5) any other information
the disclosure of which to non-qualified people subject to this Protective Order

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the Producing Party reasonably and in good faith believes would likely cause
severe harm and/or competitive detriment to the Producing Party.
2.5

Counsel: Outside Counsel of Record (as well as their support staff).

2.6

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

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or items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL” or as “CONFIDENTIAL – ATTORNEYS EYES ONLY.”

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2.7

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

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things), that are produced or generated in disclosures or responses to discovery in

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this matter.

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2.8

Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this Action.

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2.9

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.

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2.10 Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
2.11 Outside Counsel of Record: attorneys who are not employees of a

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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.

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2.12 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and
their support staffs).

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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.14 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits

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or demonstrations, and organizing, storing, or retrieving data in any form or

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medium) and their employees and subcontractors.

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2.15 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or as “CONFIDENTIAL – ATTORNEYS
EYES ONLY.”

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2.16 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.
III.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the

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trial judge. This Order does not govern the use of Protected Material at trial,
which will be subject to a separate order entered for trial by the presiding judge.
For avoidance of doubt, this Order expressly permits Outside Counsel of

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Record to advise the Parties based on review and analysis of Protected Material
that is accessible to the Outside Counsel of Record but not to the respective
Parties, provided that the Protected Material itself is not disclosed to persons who

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are not authorized to have access under this Order. To facilitate settlement
discussions in this matter, it shall not be a violation of this Order for Outside

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Counsel of Record to disclose to a Party aggregate financial information produced
by the other Party so long as details are treated in accordance with proper
designations applied by a Designating Party to such financial information and the

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Designating Party has provided prior consent to the disclosure of such aggregate
financial information.
IV.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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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,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of
time pursuant to applicable law.
V.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The Designating
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Party must designate for protection only those parts of material, documents,

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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.

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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

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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

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it designated for protection do not qualify for protection, that Designating Party

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided

in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for

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protection under this Order must be clearly so designated before the material is

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disclosed or produced.

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Designation in conformity with this Order requires:

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(a) For information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL INFORMATION” or “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” (hereinafter “CONFIDENTIAL legend”), to each page that

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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).

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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

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL” unless otherwise designated as

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party

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has identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection

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under this Order. Then, before producing the specified documents, the Producing

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Party must affix the “CONFIDENTIAL legend” to each page that contains

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Protected Material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).

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(b) For testimony given in depositions that the Designating Party identify
the Disclosure or Discovery Material on the record, before the close of the
deposition all protected testimony.

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(c) For information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information is stored the

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“CONFIDENTIAL legend.” 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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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

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material. Upon timely correction of a designation, the Receiving Party must

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make reasonable efforts to assure that the material is treated in accordance with

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the provisions of this Order. It shall be understood however, that no person or

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party shall incur any liability hereunder with respect to disclosure that occurred

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prior to receipt of written notice of a belated designation

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VI.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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6.3

The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the
challenge.

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VII. 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

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this Action only for prosecuting, defending, or attempting to settle this Action.
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Such Protected Material may be disclosed only to the categories of persons and

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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).

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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.

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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

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“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;

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(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);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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(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):

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(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

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Action to whom disclosure is reasonably necessary provided: (1) the deposing
party requests that the witness sign the form attached as Exhibit A hereto; and (2)
they will not be permitted to keep any confidential information unless they sign

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless

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otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be disclosed

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to anyone except as permitted under this Stipulated Protective Order; and

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

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

Disclosure of “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items. Unless otherwise ordered by the court or permitted in

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writing by the Designating Party, a Receiving Party may disclose any information

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or item designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this Action;

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(b) 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);

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(c) the court and its personnel;
(d) court reporters and their staff;
(e) professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A):

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

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custodian or other person who otherwise possessed or knew the information;
(g) during their depositions, witnesses, and attorneys for witnesses, in the
Action to whom disclosure is reasonably necessary provided: (1) the deposing

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party requests that the witness sign the form attached as Exhibit A hereto; and (2)

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they will not be permitted to keep any confidential information unless they sign

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless

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otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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

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mutually agreed upon by any of the parties engaged in settlement discussions.
VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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

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litigation that compels disclosure of any information or items designated in this

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Action as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall

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include a copy of the subpoena or court order;
(b) 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

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subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be

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pursued by the Designating Party whose Protected Material may be affected.
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

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this action as “CONFIDENTIAL” or CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” before a determination by the court from which the subpoena or order
issued, unless the Party has obtained the Designating Party’s permission. The

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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

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disobey a lawful directive from another court.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

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

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IX.

Non-Party in this Action and designated as “CONFIDENTIAL” or as

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced

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by Non-Parties in connection with this litigation is protected by the remedies and

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relief provided by this Order. Nothing in these provisions should be construed as

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

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

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

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Protective Order in this Action, the relevant discovery request(s), and a
reasonably specific description of the information requested; and

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(3) make the information requested available for inspection by the

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Non-Party, if requested.

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

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14 days of receiving the notice and accompanying information, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the

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discovery request. If the Non-Party timely seeks a protective order, the Receiving

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Party shall not produce any information in its possession or control that is subject

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to the confidentiality agreement with the Non-Party before a determination by the

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court. Absent a court order to the contrary, the Non-Party shall bear the burden

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and expense of seeking protection in this court of its Protected Material.

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X.

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

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disclosed Protected Material to any person or in any circumstance not authorized
under this Stipulated Protective Order, the Receiving Party must immediately (a)

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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

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the terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as
Exhibit A.

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XI.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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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

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in the stipulated protective order submitted to the court.

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

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

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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

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Order.

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

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Protected Material must comply with Civil Local Rule 79-5. Protected Material

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may only be filed under seal pursuant to a court order authorizing the sealing of

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the specific Protected Material at issue. If a Party's request to file Protected

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Material under seal is denied by the court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the court.
XIII. FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within

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60 days of a written request by the Designating Party, each Receiving Party must
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return all Protected Material to the Producing Party or destroy such material. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of
the Protected Material. Whether the Protected Material is returned or destroyed,
the Receiving Party must submit a written certification to the Producing Party

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(and, if not the same person or entity, to the Designating Party) by the 60 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

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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,

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

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correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain

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Protected Material. Any such archival copies that contain or constitute Protected

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Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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XIV. VIOLATION OF THIS ORDER
Any violation of this Order may be punished by any and all appropriate
measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED:

July 14, 2017

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/s/ Shawn G. Hansen (with permission via July 11, 2017 e-mail)
Shawn G. Hansen
Attorney for Plaintiff

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DATED:

July 14, 2017

/s/ David R. Pegnataro
Peter W. Peterson
David R. Pegnataro
Douglas G. Muehlhauser
Attorneys for Defendant

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: July 24, 2017

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__________________________________

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Patrick J. Walsh
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _____________________________ [print or type full name], declare under

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penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District
Court for the Central District of California in the case of Akeso Health

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Sciences, LLC v. Designs For Health, Inc., Case No. 2:16-cv-07749 SJO
(PJWx). I agree to comply with and to be bound by all the terms of this
Stipulated Protective Order and I understand and acknowledge that failure to

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so comply could expose me to sanctions and punishment in the nature of

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

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information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions of this Order.

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

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for the Central District of California for the purpose of enforcing the terms of

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this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action. I hereby appoint ______________ [print or
type full name] of ____________________________________________

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[print or type full address and telephone number] as my California agent for
service of process in connection with this action or any proceedings related to
enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _____________________________

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Printed name: _______________________________

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Signature: __________________________________

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