George Alvarez et al v. AbbVie, Inc. et al
Filing
70
PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 69 . [See Order for details.] (san)
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U.S. DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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GEORGE ALVAREZ AND MICHELLE CASE NO. 16-CV-8055-TJH-JEMx
ALVAREZ, PARENTS OF CHRISTINA
ALVAREZ, DECEASED, and the
District Judge: Hon. Terry J. Hatter, Jr.
ESTATE OF CHRISTINA ALVAREZ,
Courtroom 9B
DECEASED,
Magistrate Judge: Hon. John E.
Plaintiffs,
McDermott
Courtroom 640
v.
[PROPOSED] STIPULATED
ABBVIE INC., ABBOTT
PROTECTIVE ORDER
LABORATORIES, and CITRON
PHARMA, LLC,
Action Filed: 10/31/2016
Defendants.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
18941471-v1
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WHEREAS, the discovery phase of this case will involve the exchange of
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confidential business information and information involving the privacy rights of
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individuals, including the parties;
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WHEREAS, the Court wishes to expedite the free flow of information
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between the parties, facilitate the prompt resolution of disputes over
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confidentiality, protect the parties from undue burden and expense, and ensure that
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protection is afforded only to material so entitled, now therefore, for good cause
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shown, IT IS ORDERED as follows:
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1.
This Protective Order shall govern the use and dissemination of all
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information, documents or materials that are produced in the above-captioned case
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(“the Action”) and designated as Confidential or “Attorneys Eyes’ Only” during
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the discovery phase of this litigation.
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2.
In the event that any documents, interrogatory answers, responses to
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requests for admission, testimony, or other information or materials produced
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during the course of discovery of the Action are designated as being “Confidential”
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or “Attorneys’ Eyes Only” in accordance with this Order (“Protected
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Information”), the Protected Information produced shall be maintained in
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confidence and not disclosed to any person (including representatives and
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employees of the producing or receiving party) except as provided herein and shall
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be subject to the provisions of this Order.
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3.
The term “Confidential Information,” as used in this Protective Order,
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is defined in accordance with and follows Ninth Circuit law. Confidential
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Information is defined herein to include information that is not in the public
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domain and contains employee information, financial data and information, and
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any other information that may reasonably be characterized by a party as
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intellectual property, a trade secret, or confidential and proprietary information,
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including information protected from disclosure by FDA regulations including 21
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C.F.R. § 20.63 and 21 C.F.R. § 314.430; information provided to defendants
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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Abbvie, Abbott Laboratories, and/or Citron Pharma, LLC (collectively,
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“Defendants”) by third parties with the expectation that Defendants would keep
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such information confidential or pursuant to contracts that expressly require
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Defendants to maintain the confidentiality of the information or that is otherwise
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protected from disclosure by statute; names and other identifying information of
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patients in clinical studies or adverse event reports as well as the physicians who
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reported to Defendants adverse events concerning one of their patients;
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confidential client lists; information that is not generally available to the public that
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relates to, reflects or was or is used to help form Defendants’ research, business
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and legal strategies, such as information that is not generally available to the public
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that relates to, reflects or was or is used to help form Defendants’ research,
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business and legal strategies, such as business or marketing plans or studies; sales
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data that is kept confidential; pricing and financial information; discount
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information; rebate information; plaintiffs medical records and personal financial
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information; non-public financial data that would reveal Defendants’ future
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strategic commitments; information relating to job performance evaluations or
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disciplinary actions; information that is not generally available to the public that
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relates to consumer purchasing habits, pricing information, sales techniques, sales
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volumes; and information concerning communication with government agencies.
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For purposes of discovery, “trade secret” shall include any formula, compilation,
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program, plan, device, design, method, technique, process or other information
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used in the Producing Party's business and for which confidentiality or sensitivity
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has been reasonably maintained; and “proprietary” information shall mean any
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information in which a party has a protectable interest, including information
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regarding a party’s finances, processes, products, services, research and
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development, sales and marketing, strategies and technologies, trade secret or other
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confidential research, development or commercial information or other non-public
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information about the financial and business affairs of the parties.
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4.
The term “Attorneys’ Eyes Only” information is defined herein to
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include any commercially sensitive, proprietary, and/or confidential business or
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financial information (including without limitation patents or other confidential
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research, development, commercial, financial, and/or proprietary documents and
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information, new drug applications, abbreviated new drug applications,
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confidential nonpublic contracts, profitability reports or estimates, sales reports,
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sales margins, and strategic plans) which could reasonably create a competitive
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disadvantage or cause substantial economic harm to the competitive position of the
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Producing Party if disclosed to a Competitor of the Producing Party; and any other
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category of material or information hereinafter given protected status by the Court,
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to the extent said material could reasonably create a competitive disadvantage if
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disclosed to a Competitor of the Producing Party.
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5.
The terms “Competitor” and “Competitors” means any individual or
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entity that is currently, or at any time during the pendency of this litigation
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becomes, engaged in a business competing with that of any of the Defendants. This
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includes any individual or entity researching, developing, manufacturing,
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marketing, or selling any pharmaceutical that directly competes with Depakote or
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divalproex sodium/valproic acid, or is actively investigating entering such
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business.
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6.
Any party to this Action or other person or entity, including any third
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party, who produces or supplies information, documents or other materials used in
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the Action (hereinafter the “Producing Party”) may designate as “Confidential” or
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“Attorneys’ Eyes Only” any such information, document or material that it
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reasonably and in good faith believes constitutes or contains such information.
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7.
All materials designated “Confidential” or “Attorneys’ Eyes Only”
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under this Order shall be clearly stamped by the party or other person desiring such
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designation. For information produced in some form other than paper, and for any
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other tangible items, including, without limitation, compact discs or DVDs, the
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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producing party shall affix in a prominent place on the exterior of the container or
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containers in which the information or item is stored the legend “Confidential” or
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“Attorneys’ Eyes Only.” If only portions of the information or item warrant
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protection, the Producing Party shall identify the “Confidential” or “Attorneys’
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Eyes’ Only” portions in an accompanying cover letter or by designation in the
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accompanying load file.
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8.
All testimony and exhibits provided at the depositions in this Action
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initially shall be considered “Attorneys’ Eyes Only,” and the court reporter shall
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mark all pages of deposition transcripts with the designation “Attorneys’ Eyes
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Only - Subject to Further Confidentiality Review.” In order to maintain the
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protected status of such testimony (including exhibits), the Producing Party must
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notify all other parties and the court reporter in writing of the specific pages and
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lines of the transcript that should be treated as Confidential or Attorneys’ Eyes
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Only within thirty (30) days of receipt of the final transcript. Only the exhibits and
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those portions of the transcript so designated within that thirty (30) day period shall
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be deemed Confidential or Attorneys’ Eyes Only. Counsel for the opposing parties
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may have immediate access to the deposition transcript, but prior to the page and
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line designations, shall treat the entire transcript as Attorneys’ Eyes Only.
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9.
All Confidential Protected Information, including any writing or
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communication reproducing, paraphrasing, or otherwise disclosing such
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information, shall not be used for any purpose by the receiving party except for
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purposes in connection with the Action. However, nothing in this Protective Order
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shall affect Defendants’ ability to review information that plaintiffs marked
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“Confidential” and report such information to regulatory agencies in compliance
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with their obligations under federal law.
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10.
Confidential Information that has been produced in this litigation,
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including any writing or communication reproducing, paraphrasing, or otherwise
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disclosing such information, may be disclosed only to:
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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a.
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The parties to this Action, including designated in-house
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counsel for Defendants (and the clerical, secretarial and other staff working for in-
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house counsel in the legal department) and any employee that Defendants deem
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necessary to disclose such information for the purpose of assisting in, or consulting
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with respect to, the preparation of this Action;
b.
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The attorneys for the parties to this Action, including the
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partners, associates, and stenographic, secretarial, paralegal, clerical and other
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employees of such counsel;
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c.
The experts or consultants retained or consulted by the parties
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to this Action, including the partners, associates, and stenographic, secretarial,
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paralegal, clerical and other employees of such expert or consultant;
d.
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Any person who prepared or originated the document, who is
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indicated on its face as a recipient of a copy thereof, or who otherwise legitimately
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received a copy;
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Any person who is scheduled to be a witness at deposition,
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hearing or trial in this Action where the Confidential Information is reasonably
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anticipated to relate to the testimony or knowledge of such witness;
f.
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The Court and related officials involved in this litigation,
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including judges, magistrates, commissioner, mediators, referees, jurors, court
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reporters, videographers, and other Court personnel (provided, however, that any
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material designated Confidential and filed with the Court is filed in accordance
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with the procedures for filing under seal described below); and
g.
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Any person designated by the Court and in the interest of
justice, upon such terms the Court deems proper.
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Attorneys’ Eyes Only Information that has been produced in this
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litigation, including any writing or communication reproducing, paraphrasing, or
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otherwise disclosing such information, may be disclosed only to:
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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a.
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The attorneys for the parties to this Action, including the
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partners, associates, and stenographic, secretarial, paralegal, clerical and other
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employees of such counsel;
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b.
The experts or consultants retained or consulted by the parties
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to this Action, including the partners, associates, and stenographic, secretarial,
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paralegal, clerical and other employees of such expert or consultant, provided that
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such experts and consultants are not employees of or consultants to a Competitor;
c.
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Any person who prepared or originated the document, who is
indicated on its face as a recipient of a copy thereof, or who otherwise legitimately
received a copy;
d.
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The Court and related officials involved in this litigation,
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including judges, magistrates, commissioner, mediators, referees, jurors, court
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reporters, videographers, and other Court personnel (provided, however, that any
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material designated Attorneys’ Eyes Only and filed with the Court is filed in
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accordance with the procedures for filing under seal described below); and
e.
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Any person designated by the Court and in the interest of
justice, upon such terms the Court deems proper.
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Prior to disclosing Confidential or “Attorneys’ Eyes Only”
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Information to any person listed in Paragraphs 10(c), 10(g), 11(b), or 11(e) above,
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the receiving party shall:
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a.
provide such person with a copy of this Protective Order;
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b.
and obtain from such person a signed statement in the form
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attached hereto as Exhibit A. Such statement shall be retained by the party and
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need not be filed with the Court or served upon opposing counsel unless required
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by the Court. Parties are required to maintain copies of all such statements
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obtained by them and may be required to produce them in camera to the Court
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upon request.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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13.
Any person listed in Paragraph 10(a), 10(b), 10(d), or 10(e) who
receives materials containing Confidential Information shall:
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a.
be advised of this Order;
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b.
be directed to use such Confidential Information only for
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purposes in connection with this Action, and not for any other purpose; and
c.
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be directed to refrain from disclosing or discussing such
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Confidential Information with any person other than those already subject to the
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terms of this Order.
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14.
Any person listed in Paragraph 11(a) or 11(c) who receives materials
containing Attorneys’ Eyes Only Information shall:
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a.
be advised of this Order;
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b.
directed to use such Attorneys’ Eyes Only only for purposes in
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connection with this Action and not for any other purpose; and
c.
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be directed to refrain from disclosing or discussing such
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Attorneys’ Eyes Information with any person other than those already subject to
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the terms of this Order.
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15.
In the event the nonproducing party wishes to file materials
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designated as “CONFIDENTIAL,” the nonproducing party shall file the materials
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conditionally under seal pursuant to the procedures set forth in Local Rule 79-
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5.2(b). Pursuant to that rule, if the document cannot be suitably redacted by
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agreement, the filing party may file an Application pursuant to Local Rule 79-
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5.2(a), but the supporting declaration must identify the material previously
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designated as Protected Information as well as the Producing Party, and must
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describe in detail the efforts made to resolve the issue. Within four days of days of
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the filing of the Application, the Producing Party who wishes the document to be
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sealed must file a declaration pursuant to Local Rule 79-5.2(b)(i). If the
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Application to seal is denied, the filing party may file the document in the public
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case file (i.e., unsealed) no earlier than four days, and no later than ten days, after
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the Application is denied, unless the Court orders otherwise.
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16.
Any summary, compilation, notes, copy, electronic image or database
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containing Confidential Information or Attorneys’ Eyes Only Information shall be
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subject to the terms of the Protective Order to the same extent as the materials or
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information from which such summary, compilation, notes, copy, electronic image
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or database is made or derived.
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17.
Nothing contained herein shall be construed to affect in any way the
admissibility of any document, testimony, or other evidence at trial.
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Any party who has designated any material “Confidential” or
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“Attorneys’ Eyes Only” pursuant to this Order may consent to the removal of such
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designation by so notifying counsel for the other parties in writing.
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19.
Any party may object to a designation as follows:
a.
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The party objecting shall notify the Producing Party in writing
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of that objection and shall specify the designated materials, or category or sub-set
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of information, to which the objection is made.
b.
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Pursuant to Local Rule 37-1, the parties shall confer in good
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faith concerning any such objection. If the objection is not resolved within 10 days
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after mailing of the notice, then the receiving party shall follow the procedures set
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forth in Local Rule 37-2 to formulate a written stipulation and file a motion to
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remove the designation of Confidential or Attorneys’ Eyes only. The party
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designating the document as Confidential or Attorneys’ Eyes shall have the burden
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of evidentiary proof to establish grounds for such treatment as to each document or
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sub-set of documents where the designation has been placed at issue. Any such
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motion must be filed and served within 30 days after the expiration of the 10-day
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period for reaching agreement referenced to previously. Any briefing on this issue
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shall be filed under seal pursuant to the procedures set forth in Local Rule 79-
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5.2(b). If a motion is filed, information subject to dispute shall, until further order
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of the court, be treated consistently with its designation.
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20.
If a receiving party is served with a subpoena or an order issued in
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other litigation that would compel disclosure of any Protected Material, the
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receiving party shall:
a.
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Promptly notify the Producing Party, in writing, and in no event
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more than five (5) court days after receiving the subpoena or order. Such
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notification must include a copy of the subpoena or court order;
b.
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Promptly notify in writing the party who caused the subpoena
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or order to issue in the other litigation that some or all of the material covered by
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the subpoena or order is Protected Material under this Protective Order. Such
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notification must include a copy of the Protective Order; and
c.
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Cooperate with respect to all reasonable procedures sought to
be pursued by the Producing Party whose Protected Material may be affected.
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If the Producing Party timely seeks a protective order and/or seeks to
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quash the subpoena, the party served with the subpoena or court order shall not
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produce any Protected Material before determination by the court from which the
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subpoena or order issued, unless the party has obtained the Producing Party’s
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written permission. The Producing Party shall bear the burdens and the expenses of
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seeking protection in the applicable court of its Protected Material, and nothing in
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paragraphs 20 and 21 of this Protective Order should be construed as authorizing
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or encouraging a receiving party in this Action to disobey a lawful directive from
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another court.
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22.
Neither the taking of any action in accordance with the provisions of
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this Protective Order, nor the failure to object thereto shall be construed as a
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waiver of any claim or defense in this Action. Moreover, the failure to designate
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information in accordance with this Order and the failure to object to a designation
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at a given time shall not preclude a party from seeking to impose such designation
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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or challenging the propriety thereof. In the event a party discovers that it
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inadvertently produced materials containing Protected Information without
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marking them as such in accordance with this Protective Order, that party may
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provide written notice to the receiving party that the materials should be treated as
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Confidential or Attorneys’ Eyes Only, as applicable, in accordance with this Order.
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Upon receipt of such notice, the receiving party shall treat such materials as
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Confidential or Attorneys’ Eyes Only, as applicable, and upon receipt of materials
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properly marked as "Confidential," or Attorneys’ Eyes Only shall return or destroy
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the unmarked materials and shall reasonably ensure that others to whom the
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unmarked materials were disclosed have not retained copies. In the case of
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inadvertently produced privileged and/or work product documents, Fed. R. Civ. P.
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26(b)(5)(B) shall apply.
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23.
This Protective Order does not govern the use of Protected
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Information at trial. The Parties and the Court (or a Magistrate Judge to whom
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proceedings have been referred) shall determine the appropriate procedures to
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govern the use of Protected Information at trial.
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24.
The terms of this Order shall remain in full force and effect after
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termination of this action, unless modified, superseded, or terminated by the
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written agreement of the parties or by Order of this Court. Within 30 days after
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completion of this litigation, all Protected Information, including any writing or
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communication reproducing, paraphrasing, or otherwise disclosing such
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information, shall be collected by counsel for the receiving party and returned to
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the Producing Party; provided, however, that attorney work product or pleadings
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containing information derived from Protected Information may be destroyed
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rather than returned to the party who supplied such Protected Information. For
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purposes of this Order, this Action shall be considered "completed" upon entry of a
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dismissal with prejudice of the entire action or upon ten days following the entry of
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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judgment that has become final and non-appealable, or from which all appeals
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have been exhausted.
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25.
If any attorney work product or pleadings containing information
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derived from Protected Information is destroyed rather than returned to the party
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who supplied Protected Information pursuant to paragraph 22, counsel for the
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receiving party shall produce a certificate confirming the destruction of all such
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Protected Information (including, but not limited to, the original versions, all
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copies made, and all electronic versions) to counsel for the producing party within
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60 days after completion of this Action.
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26.
All parties and other persons who receive Protected Information shall
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be under a continuing duty not to disclose such information obtained in the course
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of this litigation, and this duty shall continue in full force and effect after the
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completion of this Litigation.
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27.
No party may refuse or delay to answer or respond to any discovery
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request on the basis that the response or answer would contain Protected
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Information. Responsive documents may not be withheld from production on the
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basis that such documents contain or include Protected Information.
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28.
“Privileged” materials include any materials that contain information
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protected from disclosure as defined by the Federal Rules of Civil Procedure
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and/or the Federal Rules of Evidence.
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29.
The entry of this Order shall neither be construed as a waiver of any
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right to object to the furnishing of information in response to discovery nor relieve
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any party of the obligation of producing information in the course of discovery. In
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the event that any responsive documents are withheld from production on the basis
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that such documents contain or include Privileged materials, the party withholding
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production of such documents shall provide a Privilege Log on a rolling basis,
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updated at regular and reasonable intervals, which shall state with respect to each
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responsive document being withheld or redacted on the basis that it contains
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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Privileged materials the following information: (1) the date of the document; (2)
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the author of the document; (3) the recipients of the document; (4) the specific
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privilege being invoked; and (5) a description of the document necessary to
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establish the existence of the privilege invoked. Information qualifying as attorney
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work product under federal law and created after August 17, 2010 are exempt from
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the requirements of this paragraph.
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30.
Parties withholding information on the basis of a privilege are
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required to redact privileged information from documents also containing non-
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privileged information and to produce the redacted document. A party cannot
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refuse to produce an entire document on the basis that the document contains both
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privileged and non-privileged information.
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31.
If there is a challenge to a “Privileged,” “Confidential,” or “Attorneys’
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Eyes Only” designation and the parties are unable in good faith to agree on
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whether the designation should remain, the party challenging the designation may
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move the Court to have the producing, responding or withholding party, as the case
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may be, make a witness available for a deposition limited to an inquiry concerning
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the “Confidential,” “Privileged,” or “Attorneys’ Eyes Only” designation of any so-
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designated materials.
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32.
The inadvertent production of materials subject to a claim of
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privilege, work product, or other statutory or Court-ordered confidentiality shall
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not result in a waiver of any of the foregoing protections for the materials, or for
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any other privileged or immune materials containing the same or similar subject
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matter. An inadvertent production by a party in this Action shall not be used as a
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basis for arguing that a claim of privilege, work product, or other statutory or
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Court-ordered confidentiality has been waived in any other proceeding. If any
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party inadvertently produces such materials, upon receipt of notice of such
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disclosure, the receiving party shall promptly return or delete from its litigation
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support or other database(s) such materials; return or destroy its other copies, if
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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1
any, of such materials; destroy its notes or other work product reflecting the
2
contents of such materials; and confirm in writing to the producing party that all
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copies of the recalled materials have been returned or destroyed in accordance with
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this Order. If the receiving party seeks to challenge the disclosing party's claim that
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the materials are privileged, protected, or otherwise subject to recall, it shall
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present the materials in dispute to the Court under seal for a determination.
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33.
This Court shall retain jurisdiction even after the termination of this
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Action to enforce the terms of this Order and to make such amendments,
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modifications, deletions and additions as the Court deems necessary and
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appropriate.
34.
Parties and counsel are advised that an intentional failure to comply
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with this Protective Order may be considered contempt of court and/or
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sanctionable conduct.
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IT IS SO ORDERED.
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DATED: October 23, 2017
Hon. John E. McDermott
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EXHIBIT A
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CERTIFICATE OF ACKNOWLEDGMENT OF PROTECTIVE ORDER
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I ______________________, declare that:
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I have been given a copy of and have read the Protective Order entered in
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the action entitled George Alvarez, et al. v. AbbVie, Inc., et al., U.S. District Court,
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Central District of California, Case No. 16-CV-8055-TJH-JEMx (the "Action"). I
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agree to abide by the Protective Order and not to reveal or otherwise communicate
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to anyone or utilize any of the information designated "Confidential" or
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“Attorneys’ Eyes Only” that is disclosed to me except in accordance with the terms
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of such Order. Specifically, but not by way of limitation, I agree to use such
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Protected Information only for purposes in connection with this Action, and not for
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any other purpose.
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I acknowledge that any violation of the Protective Order may be punishable
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as contempt of court or through monetary sanctions ordered by the Court, or both,
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and agree to submit to the jurisdiction of the Court in the above-referenced case for
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purposes of enforcing compliance with the Protective Order.
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Dated:
Signature
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Printed Name
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Address
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