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)

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