Ruby Sutachan v. Zimmer, Inc. et al

Filing 21

STIPULATED PROTECTIVE ORDER by Judge Manuel L. Real, re Stipulation for Protective Order 18 . See document for details. (gk)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RUBY SUTACHAN, an individual, 12 13 14 15 16 Plaintiff, v. ZIMMER, INC. a Delaware corporation; ZIMMER US, INC., a Delaware corporation; and DOES 1100, inclusive, Case No. 2:16-cv-08417-R-PLA STIPULATED PROTECTIVE ORDER Complaint Filed: October 6, 2016 Date of Removal: November 11, 2016 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 US.110968974.01 STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. The parties further acknowledge, as set forth 11 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 12 file confidential information under seal; Civil Local Rule 79-5 sets forth the 13 procedures that must be followed and the standards that will be applied when a 14 party seeks permission from the court to file material under seal. 15 B. GOOD CAUSE STATEMENT 16 This action is likely to involve trade secrets, proprietary design drawings, 17 detailed manufacturing records and quality control measures, commercial, financial, 18 technical and/or proprietary information for which special protection from public 19 disclosure and from use for any purpose other than prosecution of this action is 20 warranted. Such confidential and proprietary materials and information consist of, 21 among other things, confidential research, development, or commercial information 22 (including information implicating privacy rights of third parties), information 23 otherwise generally unavailable to the public, or which may be privileged or 24 otherwise protected from disclosure under state or federal statutes, court rules, case 25 decisions, or common law. Accordingly, to expedite the flow of information, to 26 facilitate the prompt resolution of disputes over confidentiality of discovery 27 materials, to adequately protect information the parties are entitled to keep 28 confidential, to ensure that the parties are permitted reasonable necessary uses of -1- STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 such material in preparation for and in the conduct of trial, to address their handling 2 at the end of the litigation, and serve the ends of justice, a protective order for such 3 information is justified in this matter. It is the intent of the parties that information 4 will not be designated as confidential for tactical reasons and that nothing be so 5 designated without a good faith belief that it has been maintained in a confidential, 6 non-public manner, and there is good cause why it should not be part of the public 7 record of this case. 8 2. 9 10 2.1 Action: Ruby Sutachan v. Zimmer, Inc., et al., Case No. 2:16-cv- 08417-R-PLA 11 12 DEFINITIONS 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 13 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 14 how it is generated, stored or maintained) or tangible things that qualify for 15 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 16 the Good Cause Statement. 17 18 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 19 2.5 Designating Party: a Party or Non-Party that designates information or 20 items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL.” 22 2.6 Disclosure or Discovery Material: all items or information, regardless 23 of the medium or manner in which it is generated, stored, or maintained (including, 24 among other things, testimony, transcripts, and tangible things), that are produced 25 or generated in disclosures or responses to discovery in this matter. 26 /// 27 /// 28 US.110968974.01 -2STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 2.7 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 4 2.8 House Counsel: attorneys who are employees of a party to this Action. 5 House Counsel does not include Outside Counsel of Record or any other outside 6 counsel. 7 8 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 9 2.10 Outside Counsel of Record: attorneys who are not employees of a 10 party to this Action but are retained to represent or advise a party to this Action and 11 have appeared in this Action on behalf of that party or are affiliated with a law firm 12 that has appeared on behalf of that party, including support staff. 13 2.11 Party: any party to this Action, including all of its officers, directors, 14 employees, consultants, retained experts, and Outside Counsel of Record (and their 15 support staffs). 16 17 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 18 2.13 Professional Vendors: persons or entities that provide litigation 19 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 20 demonstrations, and organizing, storing, or retrieving data in any form or medium) 21 and their employees and subcontractors. 22 2.14 Protected Material: 23 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 24 2.15 Receiving Party: 25 Material from a Producing Party. 26 /// 27 a Party that receives Disclosure or Discovery /// 28 US.110968974.01 -3STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the 8 trial judge. This Order does not govern the use of Protected Material at trial. 9 4. DURATION 10 Once a case proceeds to trial, all of the court-filed information to be 11 introduced that was previously designated as confidential or maintained pursuant to 12 this protective order becomes public and will be presumptively available to all 13 members of the public, including the press, unless compelling reasons supported by 14 specific factual findings to proceed otherwise are made to the trial judge in advance 15 of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180- 16 81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing documents 17 produced in discovery from “compelling reasons” standard when merits-related 18 documents are part of court record). Accordingly, the terms of this protective order 19 do not extend beyond the commencement of the trial. 20 5. 21 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 22 Each Party or Non-Party that designates information or items for protection under 23 this Order must take care to limit any such designation to specific material that 24 qualifies under the appropriate standards. The Designating Party must designate for 25 protection only those parts of material, documents, items, or oral or written 26 communications that qualify so that other portions of the material, documents, 27 28 US.110968974.01 -4STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 items, or communications for which protection is not warranted are not swept 2 unjustifiably within the ambit of this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations 4 that are shown to be clearly unjustified or that have been made for an improper 5 purpose (e.g., to unnecessarily encumber the case development process or to 6 impose unnecessary expenses and burdens on other parties) may expose the 7 Designating Party to sanctions. 8 If it comes to a Designating Party’s attention that information or items that it 9 designated for protection do not qualify for protection, that Designating Party must 10 promptly notify all other Parties that it is withdrawing the inapplicable designation. 11 5.2 Manner and Timing of Designations. Except as otherwise provided in 12 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 13 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 14 under this Order must be clearly so designated before the material is disclosed or 15 produced. 16 Designation in conformity with this Order requires: 17 (a) for information in documentary form (e.g., paper or electronic 18 documents, but excluding transcripts of depositions or other pretrial or trial 19 proceedings), that the Producing Party affix, at a minimum, the legend 20 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 21 contains protected material. If only a portion or portions of the material on a page 22 qualifies for protection, the Producing Party also must clearly identify the protected 23 portion(s) (e.g., by making appropriate markings in the margins). 24 A Party or Non-Party that makes original documents available for inspection 25 need not designate them for protection until after the inspecting Party has indicated 26 which documents it would like copied and produced. During the inspection and 27 before the designation, all of the material made available for inspection shall be 28 US.110968974.01 -5STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 2 documents it wants copied and produced, the Producing Party must determine 3 which documents, or portions thereof, qualify for protection under this Order. Then, 4 before producing the specified documents, the Producing Party must affix the 5 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 6 portion or portions of the material on a page qualifies for protection, the Producing 7 Party also must clearly identify the protected portion(s) (e.g., by making 8 appropriate markings in the margins). 9 (b) for testimony given in depositions that the Designating Party identify 10 the Disclosure or Discovery Material on the record, before the close of the 11 deposition. 12 (c) for information produced in some form other than documentary and 13 for any other tangible items, that the Producing Party affix in a prominent place on 14 the exterior of the container or containers in which the information is stored the 15 legend “CONFIDENTIAL.” If only a portion or portions of the information 16 warrants protection, the Producing Party, to the extent practicable, shall identify the 17 protected portion(s). 18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 19 failure to designate qualified information or items does not, standing alone, waive 20 the Designating Party’s right to secure protection under this Order for such 21 material. Upon timely correction of a designation, the Receiving Party must make 22 reasonable efforts to assure that the material is treated in accordance with the 23 provisions of this Order. 24 6. 25 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 26 designation of confidentiality at any time that is consistent with the Court’s 27 Scheduling Order. 28 US.110968974.01 -6STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 2 resolution process under Local Rule 37.1, et seq. Any discovery motion must 3 strictly comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3. 4 6.3 Burden. The burden of persuasion in any such challenge proceeding 5 shall be on the Designating Party. Frivolous challenges, and those made for an 6 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 7 other parties) may expose the Challenging Party to sanctions. Unless the 8 Designating Party has waived or withdrawn the confidentiality designation, all 9 parties shall continue to afford the material in question the level of protection to 10 which it is entitled under the Producing Party’s designation until the Court rules on 11 the challenge. 12 7. 13 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 14 disclosed or produced by another Party or by a Non-Party in connection with this 15 Action only for prosecuting, defending, or attempting to settle this Action. Such 16 Protected Material may be disclosed only to the categories of persons and under the 17 conditions described in this Order. When the Action has been terminated, a 18 Receiving Party must comply with the provisions of section 13 below (FINAL 19 DISPOSITION). 20 Protected Material must be stored and maintained by a Receiving Party at a 21 location and in a secure manner that ensures that access is limited to the persons 22 authorized under this Order. 23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 24 otherwise ordered by the Court or permitted in writing by the Designating Party, a 25 Receiving 26 “CONFIDENTIAL” only to: Party may disclose any information or item designated 27 28 US.110968974.01 -7STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 2 well as employees of said Outside Counsel of Record to whom it is reasonably 3 necessary to disclose the information for this Action; 4 5 6 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the Court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional 12 Vendors to whom disclosure is reasonably necessary for this Action and who have 13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 15 16 (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 17 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 18 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they 19 will not be permitted to keep any confidential information unless they sign the 20 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 21 agreed by the Designating Party or ordered by the Court. Pages of transcribed 22 deposition testimony or exhibits to depositions that reveal Protected Material may 23 be separately bound by the court reporter and may not be disclosed to anyone 24 except as permitted under this Stipulated Protective Order; and 25 26 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions. 27 28 US.110968974.01 -8STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation 4 that compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL,” that Party must: 6 7 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order 9 to issue in the other litigation that some or all of the material covered by the 10 subpoena or order is subject to this Protective Order. Such notification shall include 11 a copy of this Stipulated Protective Order; and 12 13 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with 15 the subpoena or court order shall not produce any information designated in this 16 action as “CONFIDENTIAL” before a determination by the court from which the 17 subpoena or order issued, unless the Party has obtained the Designating Party’s 18 permission. The Designating Party shall bear the burden and expense of seeking 19 protection in that court of its confidential material and nothing in these provisions 20 should be construed as authorizing or encouraging a Receiving Party in this Action 21 to disobey a lawful directive from another court. 22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 23 PRODUCED IN THIS LITIGATION 24 (a) The terms of this Order are applicable to information produced by a 25 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 26 produced by Non-Parties in connection with this litigation is protected by the 27 28 US.110968974.01 -9STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 remedies and relief provided by this Order. Nothing in these provisions should be 2 construed as prohibiting a Non-Party from seeking additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, to 4 produce a Non-Party’s confidential information in its possession, and the Party is 5 subject to an agreement with the Non-Party not to produce the Non-Party’s 6 confidential information, then the Party shall: 7 (1) promptly notify in writing the Requesting Party and the Non- 8 Party that some or all of the information requested is subject to a confidentiality 9 agreement with a Non-Party; 10 (2) promptly provide the Non-Party with a copy of the Stipulated 11 Protective Order in this Action, the relevant discovery request(s), and a reasonably 12 specific description of the information requested; and 13 14 (3) make the information requested available for inspection by the Non-Party, if requested. 15 (c) If the Non-Party fails to seek a protective order from this Court within 16 14 days of receiving the notice and accompanying information, the Receiving Party 17 may produce the Non-Party’s confidential information responsive to the discovery 18 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 19 not produce any information in its possession or control that is subject to the 20 confidentiality agreement with the Non-Party before a determination by the Court. 21 Absent a court order to the contrary, the Non-Party shall bear the burden and 22 expense of seeking protection in this Court of its Protected Material. 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 25 Protected Material to any person or in any circumstance not authorized under this 26 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 27 writing the Designating Party of the unauthorized disclosures, (b) use its best 28 US.110968974.01 -10STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 2 person or persons to whom unauthorized disclosures were made of all the terms of 3 this Order, and (d) request such person or persons to execute the “Acknowledgment 4 and Agreement to Be Bound” that is attached hereto as Exhibit A. 5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 6 PROTECTED MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain 8 inadvertently produced material is subject to a claim of privilege or other 9 protection, the obligations of the Receiving Parties are those set forth in Federal 10 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 11 whatever procedure may be established in an e-discovery order that provides for 12 production without prior privilege review. 13 12. 14 15 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 16 12.2 Right to Assert Other Objections. By stipulating to the entry of this 17 Protective Order, no Party waives any right it otherwise would have to object to 18 disclosing or producing any information or item on any ground not addressed in 19 this Stipulated Protective Order. Similarly, no Party waives any right to object on 20 any ground to use in evidence of any of the material covered by this Protective 21 Order. 22 12.3 Filing Protected Material. A Party that seeks to file under seal any 23 Protected Material must comply with Civil Local Rule 79-5. Protected Material 24 may only be filed under seal pursuant to a court order authorizing the sealing of the 25 specific Protected Material at issue; good cause must be shown in the request to file 26 under seal. If a Party’s request to file Protected Material under seal is denied by the 27 28 US.110968974.01 -11STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 Court, then the Receiving Party may file the information in the public record unless 2 otherwise instructed by the Court. 3 13. FINAL DISPOSITION 4 After the final disposition of this Action, within 60 days of a written request 5 by the Designating Party, each Receiving Party must return all Protected Material to 6 the Producing Party or destroy such material. As used in this subdivision, “all 7 Protected Material” includes all copies, abstracts, compilations, summaries, and any 8 other format reproducing or capturing any of the Protected Material. Whether the 9 Protected Material is returned or destroyed, the Receiving Party must submit a 10 written certification to the Producing Party (and, if not the same person or entity, to 11 the Designating Party) by the 60 day deadline that (1) identifies (by category, where 12 appropriate) all the Protected Material that was returned or destroyed and (2) 13 affirms that the Receiving Party has not retained any copies, abstracts, 14 compilations, summaries or any other format reproducing or capturing any of the 15 Protected Material. Notwithstanding this provision, counsel are entitled to retain an 16 archival copy of all pleadings, motion papers, trial, deposition, and hearing 17 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 18 reports, attorney work product, and consultant and expert work product, even if 19 such materials contain Protected Material. Any such archival copies that contain or 20 constitute Protected Material remain subject to this Protective Order as set forth in 21 Section 4. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 US.110968974.01 -12STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 14. 2 measures including, without limitation, contempt proceedings and/or monetary 3 sanctions. Any violation of this Order may be punished by any and all appropriate 4 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 DATED April 4, 2017 8 9 10 /s/ Nabil Salem Attorneys for Plaintiff Ruby Sutachan 11 12 13 14 15 DATED: April 4, 2017 /s/ Howard D. Ruddell Attorneys for Defendants Zimmer, Inc. and Zimmer US, Inc. 16 17 18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 19 20 DATED: April 11, 2017 21 22 ____________________________________ 23 United States District Judge 24 25 26 27 28 US.110968974.01 -13STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 ____________________ [print or type full address], declare under penalty of 6 perjury that I have read in its entirety and understand the Stipulated Protective 7 Order that was issued by the United States District Court for the Central District of 8 California on [date] in the case of Ruby Sutachan v. Zimmer, Inc., et al., Case No. 9 2:16-cv-08417-R-PLA. I agree to comply with and to be bound by all the terms of 10 this Stipulated Protective Order and I understand and acknowledge that failure to so 11 comply could expose me to sanctions and punishment in the nature of contempt. I 12 solemnly promise that I will not disclose in any manner any information or item 13 that is subject to this Stipulated Protective Order to any person or entity except in 14 strict compliance with the provisions of this Order. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 US.110968974.01 -14STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA 1 I further agree to submit to the jurisdiction of the United States District Court 2 for the Central District of California for the purpose of enforcing the terms of this 3 Stipulated Protective Order, even if such enforcement proceedings occur after 4 termination of this action. I hereby appoint ______________________________ 5 [print or type full name] of ______________________________ [print or type full 6 address and telephone number] as my California agent for service of process in 7 connection with this action or any proceedings related to enforcement of this 8 Stipulated Protective Order. 9 10 Date: ______________________________________ 11 12 City and State where sworn and signed: _________________________________ 13 14 Printed name: _______________________________ 15 16 Signature: __________________________________ 17 18 19 20 21 22 23 24 25 26 27 28 US.110968974.01 -15STIPULATED PROTECTIVE ORDER CASE NO.: 2:16-CV-08417-R-PLA

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