Joseph Laughlin v. MicroPort Orthopedics Inc. et al

Filing 29

STIPULATED PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Stipulation for Protective Order 27 . (see order for details) (hr)

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ERIN M. BOSMAN (BAR NO. 204987)
[e-mail]
JULIE Y. PARK (BAR NO. 259929)
[e-mail]
MORRISON & FOERSTER LLP
12531 High Bluff Drive
San Diego, California 92130-2040
Telephone: [phone]
Facsimile: 858.720.5125
Attorneys for Defendant
MICROPORT ORTHOPEDICS INC.
BRAD SNYDER (BAR NO. 108643)
[e-mail]
LAW OFFICES OF BRAD SNYDER
20969 Ventura Blvd., Suite 201
Woodland Hills, CA 91364
Telephone: [phone]
Facsimile: 818-706-1177
Attorneys for Plaintiff
JOSEPH LAUGHLIN

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
JOSEPH LAUGHLIN,
Plaintiff,
v.
MICROPORT ORTHOPEDICS, INC.;
and DOES 1-10, inclusive,

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Case No. 2:17-cv-09005-RGK-RAO
STIPULATED PROTECTIVE
ORDER1
Magistrate Judge: Honorable Rozella A.
Oliver
Courtroom: 590

Defendants.

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This Stipulated Protective Order is substantially based on the model
protective order provided under Magistrate Judge Rozella A. Oliver’s Procedures.

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CASE NO. 2:17-CV-09005-RGK-RAO
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1.

A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

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proprietary or private information for which special protection from public

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

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

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

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

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

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

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under the applicable legal principles.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, customer and pricing lists and

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other valuable research, development, commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and

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from use for any purpose other than prosecution of this action is warranted. Such

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confidential and proprietary materials and information consist of, among other

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things, confidential business or financial information, information regarding

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confidential business practices, or other confidential research, development, or

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commercial information (including information implicating privacy rights of third

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parties), personal medical records, information otherwise generally unavailable to

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the public, or which may be privileged or otherwise protected from disclosure under

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state or federal statutes, court rules, case decisions, or common law. Accordingly,

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to expedite the flow of information, to facilitate the prompt resolution of disputes

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over confidentiality of discovery materials, to adequately protect information the

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parties are entitled to keep confidential, to ensure that the parties are permitted

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reasonable necessary uses of such material in preparation for and in the conduct of

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trial, to address their handling at the end of the litigation, and serve the ends of

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justice, a protective order for such information is justified in this matter. It is the
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intent of the parties that information will not be designated as confidential for

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tactical reasons and that nothing be so designated without a good faith belief that it

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has been maintained in a confidential, non-public manner, and there is good cause

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why it should not be part of the public record of this case.

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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
SEAL
The parties further acknowledge, as set forth in Section 13.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information

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under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

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and the standards that will be applied when a party seeks permission from the court

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to file material under seal.

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There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive motions,

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good cause must be shown to support a filing under seal. See Kamakana v. City

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and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.

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Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony

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Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective

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orders require good cause showing), and a specific showing of good cause or

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compelling reasons with proper evidentiary support and legal justification, must be

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made with respect to Protected Material that a party seeks to file under seal. The

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parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL

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or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY does not—without

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the submission of competent evidence by declaration, establishing that the material

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sought to be filed under seal qualifies as confidential, privileged, or otherwise

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protectable—constitute good cause.

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Further, if a party requests sealing related to a dispositive motion or trial,

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then compelling reasons, not only good cause, for the sealing must be shown, and

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the relief sought shall be narrowly tailored to serve the specific interest to be
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protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.

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2010). For each item or type of information, document, or thing sought to be filed

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or introduced under seal in connection with a dispositive motion or trial, the party

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seeking protection must articulate compelling reasons, supported by specific facts

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and legal justification, for the requested sealing order. Again, competent evidence

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supporting the application to file documents under seal must be provided by

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declaration.

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Any document that is not confidential, privileged, or otherwise protectable in

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its entirety will not be filed under seal if the confidential portions can be redacted.

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If documents can be redacted, then a redacted version for public viewing, omitting

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only the confidential, privileged, or otherwise protectable portions of the document,

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shall be filed. Any application that seeks to file documents under seal in their

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entirety should include an explanation of why redaction is not feasible.

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2.

DEFINITIONS
2.1

Action: This pending federal lawsuit, Joseph Laughlin v. MicroPort

Orthopedics, Inc., et al., 2:17-cv-09005-RGK-RAO (C.D. Cal.).
2.2

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

designation of information or items under this Order.
2.3

Counsel: Outside Counsel of Record and In-House Counsel (as well

as their support staff).
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Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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2.5

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.

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Expert: a person with specialized knowledge or experience in a matter

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

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an expert witness or as a consultant in this Action.

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“CONFIDENTIAL” Information or Items: Disclosure or Discovery

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Material that qualifies for protection under Federal Rule of Civil Procedure 26(c),

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and as specified above in the Good Cause Statement, because it is non-public and a

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Party or Non-Party in good faith believes must be held confidential to protect

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personal privacy interests or confidential, proprietary, and/or commercially

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sensitive information, including trade secrets, or otherwise have a compelling need

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for privacy.

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items: Disclosure or Discovery Material that is extremely

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confidential and/or sensitive in nature, disclosure of which to another Party or Non-

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Party the Producing Party reasonably believes is likely to cause economic harm or

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competitive disadvantage to the Producing Party, is highly personal non-public

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information, or will otherwise compromise or jeopardize the Producing Party’s

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business interests. The parties agree that the following information, if nonpublic,

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shall be presumed to merit the “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” designation: trade secrets, pricing information, financial data, sales

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information, sales or marketing forecasts or plans, business plans, sales or

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marketing strategy, product development information, engineering documents,

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testing documents, employee information, and other nonpublic information of

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similar competitive and business sensitivity.

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In-House Counsel: attorneys who are employees of a party to this

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Action. In-House Counsel does not include Outside Counsel of Record or any

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other outside counsel.
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2.10 Non-Party: any natural person, partnership, corporation, association or
other legal entity not named as a Party to this action.

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2.11 Outside Counsel of Record: attorneys who are not employees of a

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party to this Action but are retained to represent or advise a party to this Action and

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have appeared in this Action on behalf of that party or are affiliated with a law firm

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that has appeared on behalf of that party, and includes support staff.

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2.12 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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

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2.14 Professional Vendors: persons or entities that provide litigation

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

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

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and their employees and subcontractors.

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2.15 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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

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3.

SCOPE
The protections conferred by this Stipulated Protective Order cover not only

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

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

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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

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Any Protected Material subject to this Order is for use in this Action only,

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and may not be used in any other litigation or other proceeding. No attorneys or

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any other persons, other than the attorneys of record for Plaintiff and Defendant in

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this Action or any other person authorized to receive and/or use Protected Material

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pursuant to this Order, are entitled to receive and/or use any Protected Material

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subject to this Order. Counsel for Plaintiff and Defendant in this Action and any

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other person authorized to receive and/or use Protected Material pursuant to this

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Order, are strictly prohibited from sharing any Protected Material subject to this

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Order with any attorney(s) or other persons who are not a part of this Action.

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4.

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

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

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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

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

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including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items or oral or written

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communications that qualify so that other portions of the material, documents,
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items or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to

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impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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

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produced.

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Designation in conformity with this Order requires:
(a)

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

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, to each page that contains

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protected material. If only a portion of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be
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deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

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

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Producing Party must determine which documents, or portions thereof, qualify for

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

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Producing Party must affix the “CONFIDENTIAL” legend and/or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend to each page that

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contains Protected Material. If only a portion of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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

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(b)

for testimony given in depositions that the Designating Party

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identifies the Disclosure or Discovery Material on the record, before the close of

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the deposition all protected testimony. When it is impractical to identify separately

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each portion of testimony that is entitled to protection and it appears that substantial

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portions of the testimony may qualify for protection, the Designating Party may

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have up to 21 days after receipt of the final transcript to identify the specific

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portions of the testimony as to which protection is sought and to specify the level of

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protection being asserted. Only those portions of the testimony that are

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appropriately designated for protection within the 21 days shall be covered by the

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provisions of this Stipulated Protective Order. Alternatively, a Designating Party

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may specify, at the deposition or up to 21 days afterwards, that the entire transcript

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shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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(c)

for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a prominent place

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on the exterior of the container or containers in which the information is stored the

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legend “CONFIDENTIAL” or the legend “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information

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warrants protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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5.3

Inadvertent Failures to Designate and Re-designation. A Designating

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Party that inadvertently fails to designate Disclosure or Discovery Material as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” pursuant to this Order at the time of its production shall be able to correct

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its designation, with the Receiving Party reserving the right to assert that such re-

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designation is improper pursuant to the procedures set forth herein regarding

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challenging designations. Such inadvertent failure shall be corrected by providing

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to the Receiving Party written notice of the error and substituted copies of the

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inadvertently unmarked or mis-marked Disclosure or Discovery Materials. Any

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Receiving Party that receives such inadvertently unmarked or mis-marked

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Disclosure or Discovery Materials shall, within five (5) days of receipt of the

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substitute copies, destroy or return to the law firm representing the Designating

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Party all copies of such mis-designated documents. The Designating Party shall

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comply with Section 5.2 when re-designating Disclosure or Discovery Material as

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Protected Material. Following any re-designation of Disclosure or Discovery

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Material as Protected Material (or re-designation of “CONFIDENTIAL” material as

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) the Party receiving

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such Protected Material shall take reasonable steps to comply with the re-

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designation, including, without limitation, retrieving all copies and excerpts of any

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re-designated Protected Material from persons not entitled to receive it as re-

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designated.

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A Receiving Party shall not be in breach of this Stipulated Protective Order

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for any use of such inadvertently non-designated or inadvertently mis-designated

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material before the Receiving Party receives notice of the inadvertent failure to

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designate, unless an objectively reasonable person would have realized that the

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material should have been appropriately designated with a confidentiality
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designation under this Stipulated Protective Order. Once a Receiving Party has

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received notice of the inadvertent failure to designate pursuant to this provision, the

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Receiving Party shall treat such material at the appropriately designated level

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pursuant to the terms of this Stipulated Protective Order, reserving all rights to

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assert that such re-designation is not proper under the procedures set forth herein

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regarding challenging designations.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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6.3

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

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

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

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

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

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

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

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challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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disclosed or produced by another Party or by a Non-Party in connection with this

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Action only for prosecuting, defending or attempting to settle this Action. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the Action has been terminated, a
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Receiving Party must comply with the provisions of Section 14 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b)

the officers, directors, and employees (including In-House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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Action;

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(c)

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

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whom disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(g)

the author or recipient of a document containing the information

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

during their depositions, witnesses, and attorneys for witnesses,

in the Action to whom disclosure is reasonably necessary provided: (1) the
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deposing party requests that the witness sign the form attached as Exhibit 1 hereto;

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and (2) they will not be permitted to keep any confidential information unless they

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

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

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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

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anyone except as permitted under this Stipulated Protective Order; and

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(i)

any mediator or settlement officer, and their supporting

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

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the Court or permitted

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

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information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b)

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

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whom disclosure is reasonably necessary for this Action, who have signed the

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

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procedures set forth in Section 7.4 below have been followed;

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(c)

the Court and its personnel;

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(d)

court reporters and their staff;

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(e)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);
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(f)

the author or recipient of a document containing the information

or a custodian or other person who otherwise possessed or knew the information;

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(g)

any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to

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Experts.

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(a)

Unless otherwise ordered by the court or agreed to in writing by

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the Designating Party, a Party that seeks to disclose to an Expert (as defined in this

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Order) any information or item that has been designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b)

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first must make a written request to the Designating Party that (1) sets forth the full

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name of the Expert and the city and state of his or her primary residence, (2)

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identifies the Expert’s current employer(s), and (3) identifies any orthopedic

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implant manufacturer from whom the Expert has received compensation or funding

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for work in his or her areas of expertise or to whom the expert has provided

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professional services, including in connection with a litigation, at any time during

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the preceding five years.

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(b)

A Party that makes a request and provides the information

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specified in the preceding respective paragraphs may disclose the subject Protected

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Material to the identified Expert unless, within seven days of delivering the request,

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the Party receives a written objection from the Designating Party. Any such

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objection must set forth in detail the grounds on which it is based. Absent

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extraordinary circumstances, the Designating Party will not object unless the

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identified Expert has received compensation or funding from a direct competitor.

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(c)

A Party that receives a timely written objection must meet and

confer with the Designating Party to try to resolve the matter by agreement within
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seven days of the written objection. If no agreement is reached, the Party seeking

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to make the disclosure to the Expert may file a motion seeking permission from the

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court to do so. Any such motion must describe the circumstances with specificity,

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set forth in detail the reasons why the disclosure to the Expert is reasonably

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necessary, assess the risk of harm that the disclosure would entail, and suggest any

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additional means that could be used to reduce that risk. In addition, any such

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motion must be accompanied by a competent declaration describing the parties’

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efforts to resolve the matter by agreement (i.e., the extent and the content of the

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meet and confer discussions) and setting forth the reasons advanced by the

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Designating Party for its refusal to approve the disclosure.

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(d)

In any such proceeding, the Party opposing disclosure to the

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Expert shall bear the burden of proving that the risk of harm that the disclosure

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would entail (under the safeguards proposed) outweighs the Receiving Party’s need

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to disclose the Protected Material to its Expert.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS EYES’

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ONLY,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such

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

promptly notify in writing the party who caused the subpoena or

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

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subpoena or order is subject to this Stipulated Protective Order. Such notification

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shall include a copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

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

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If the Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” before a determination by the court from which the subpoena or

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order issued, unless the Party has obtained the Designating Party’s permission. The

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Designating Party shall bear the burden and expense of seeking protection in that

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court of its confidential material and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this Action to disobey

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a lawful directive from another court.

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9.

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

The terms of this Order are applicable to information produced

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced

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

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

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prohibiting a Non-Party from seeking additional protections.

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(b)

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

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request, to produce a Non-Party’s confidential information in its possession, and the

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Party is subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the

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

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reasonably specific description of the information requested; and

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(3)

make the information requested available for inspection

by the Non-Party, if requested.

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(c)

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

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

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

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

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

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its Protected

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Material.

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10.

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

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A. Unauthorized or

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inadvertent disclosure does not change the status of Disclosure or Discovery

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Material or waive the right to maintain the disclosed document or information as

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Protected.

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11.

PRIVILEGED MATERIAL

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The parties shall log any asserted privileges regarding written discovery as

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required under the Federal Rules of Civil Procedure, except that no party shall be

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required to log communications with Counsel (as defined in Section 2.3) or

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communications about this Action taking place after it was filed. The parties must

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provide a privilege log within thirty days of a production.

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12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
12.1 The parties agree that the inadvertent or mistaken production or

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disclosure of documents or other information subject to a claim of the attorney-

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client privilege, the work product doctrine, or other privilege or immunity,

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regardless of the reason for or care taken in connection with the inadvertent or

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mistaken production, shall not be deemed a waiver of a claim of privilege or

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immunity, either as to the specific information disclosed or as to any other related

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information. Further, the parties expressly agree that this agreement shall supplant

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the requirements of Fed. R. Evid. 502(b)(2) and Fed. R. Evid. 502(b)(3). If a

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Producing Party inadvertently produces, or otherwise discloses to a Receiving

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Party, information that is subject to such a claim of privilege or immunity, the

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Producing Party shall promptly upon discovery of such disclosure so advise the

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Receiving Party in writing and request that the inadvertently disclosed information

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be returned. The Receiving Party shall immediately cease all review of such

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inadvertently produced material, immediately segregate such inadvertently

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produced material, and return all copies of the inadvertently produced material

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within five business days of receipt of the request. Any notes, summaries, or

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analyses referring or relating to any inadvertently produced privileged material

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shall be destroyed. Nothing in this Stipulated Protective Order shall preclude the

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Receiving Party returning the inadvertently produced material from seeking an
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order compelling the production of information previously produced inadvertently

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on the grounds that the material was improperly designated as privileged.

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12.2 The production or disclosure of privileged or work-product protected

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information, whether inadvertent or otherwise, is not a waiver of the privilege or

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protection from discovery in this action or in any other federal or state proceeding.

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This provision shall be interpreted to provide the maximum protection allowed by

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Fed. R. Evid. 502(d). Notwithstanding, nothing contained herein is intended to or

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shall serve to limit a party’s right to conduct a review of any document, ESI, or

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information (including metadata) for relevance, responsiveness, and/or segregation

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of privileged and/or protected information before production.

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12.3 No challenge in this Action to the designation of Protected Material as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” or to a claim of privilege or immunity from disclosure shall assert as a

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ground for the challenge that the materials were initially produced with an incorrect

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or with no confidentiality designation or initially produced inadvertently. No

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challenge in this Action to a claim of privilege or immunity from disclosure of any

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material initially produced inadvertently shall refer to the information contained in

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the material produced inadvertently, except the information that appears on any

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applicable privilege log.

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13.

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

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

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13.2 Right to Assert Other Objections. By stipulating to the entry of this

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Stipulated Protective Order, no Party waives any right it otherwise would have to

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object to disclosing or producing any information or item on any ground not

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addressed in this Stipulated Protective Order. Similarly, no Party waives any right

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to object on any ground to use in evidence of any of the material covered by this

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Stipulated Protective Order.

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

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

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

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

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

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in the public record unless otherwise instructed by the court.

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14.

FINAL DISPOSITION
After the final disposition of this Action, as defined in Section 4, within 60

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days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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

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compilations, summaries, and any other format reproducing or capturing any of the

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Protected Material. Whether the Protected Material is returned or destroyed, the

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Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the 60 day deadline that

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(1) identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2) affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this Stipulated

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Protective Order as set forth in Section 4 (DURATION).
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15.

VIOLATION
Any violation of this Order may be punished by appropriate measures

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

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: September 12, 2018

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/s/ Brad Snyder
Attorneys for Plaintiff

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DATED: September 12, 2018

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/s/ Erin M. Bosman
Attorneys for Defendant

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: September 14, 2018

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HON. ROZELLA A. OLIVER
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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

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

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

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on [date] in the case of Joseph Laughlin v. MicroPort Orthopedics, Inc., et al.,

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2:17-cv-09005-RGK-RAO. I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order and I understand and acknowledge that

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

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

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

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

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

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the Central District of California for enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of

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this action.

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I hereby appoint _________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

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Order.

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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ATTESTATION
Pursuant to C.D. Cal. Local Rule 5-4.3.4(a)(2)(i), I, Erin Bosman, attest that

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the other signatory listed, and on whose behalf the filing is submitted, concurs in

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this filing’s content and has authorized the filing.

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Dated: September 12, 2018

By: /s/ Erin M. Bosman
Erin M. Bosman

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