Corey Westgate v. Coloplast Corp. et al

Filing 56

PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Stipulation for Protective Order 55 . (see document for details) (hr)

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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11 COREY WESTGATE,
Plaintiff,

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v.

14 COLOPLAST CORP. and
COLOPLAST MANUFACTURING
15 US, LLC,
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Defendants.

Case No.: 2:18-cv-03431-DSF-RAO
[PROPOSED] AGREED ORDER
FOR PROTECTION OF
CONFIDENTIAL INFORMATION

Magistrate Judge: Honorable Rozella
A. Oliver
Ctrm: 590 – 5th Floor

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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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I.

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SCOPE OF ORDER
Disclosure and discovery in this proceeding may involve production of

3 confidential, proprietary, and private information for which special protection from
4 public disclosure and from any purpose other than prosecuting this litigation would
5 be warranted. Accordingly, the parties hereby stipulate to and petition the court to
6 enter this Agreed Protective Order in this matter.
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II.

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THE ORDER
The parties have agreed to be bound by the terms of this Agreed Protective

9 Order and to request its entry by the presiding judge. It is hereby ORDERED as
10 follows:
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A.
1.

DISCOVERY PHASE
For purposes of this Order, the following definitions shall apply: (a) the

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terms “document” and “electronically stored information” (“ESI”) shall

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have the full meaning ascribed to them by the Federal Rules of Civil

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Procedure (“Fed. R. Civ. P.”); and (b) the term “producing party” shall

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be defined as any party or non-party who is required to produce or

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provide materials or testimony containing confidential information.

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2.

A producing party may designate as “CONFIDENTIAL” any material,

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including any documents or ESI, the producing party believes in good

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faith constitutes or discloses information that qualifies for protection

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pursuant to Fed. R. Civ. P. 26(c), specifically information that is trade

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secret or other confidential research, development, or commercial

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information, and materials that are deemed confidential under Federal

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Drug Administration (“FDA”) regulations and Health Insurance

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Portability

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regulations.

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3.

and

Accountability

Act

(“HIPAA”)

statutes

and/or

Confidential information may be further designated as “HIGHLY
CONFIDENTIAL” if a Defendant produces materials that it believes in
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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good faith would, if disclosed, cause substantial economic harm to the

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competitive position of the entity from which the information was

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obtained because it is HIGHLY CONFIDENTIAL research and

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development material on a new product that has not been approved or

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cleared by the FDA or a similar regulatory body or reflects a party’s

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price competitiveness in the market or marketing business strategies of a

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party concerning a current or new product. The plaintiff(s) will inform

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the producing party of its intent to disclose such information to any

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individual who is currently, or who at any time during the pendency of

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this litigation becomes, a consultant to a competitor of the producing

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party in the pelvic organ mesh business, or is a consultant to an entity

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actively investigating entering such business, and plaintiff(s) will follow

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the procedures for disclosure of such materials to such individual as

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provided in Paragraph II.B.8 of this Protective Order.

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4.

Challenges to Designations or Redacted Information: Any party may at

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any time that is consistent with the Court’s Scheduling Order challenge

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the redaction or the designation of information as CONFIDENTIAL or

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HIGHLY CONFIDENTIAL by providing written notice of its objection

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to the designating party, or, in the case of a deposition, either on the

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record at a deposition or in writing later.

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confidentiality designation must be specific as to which document(s) or

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other material is being challenged by listing Bates numbers or other

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identifying information if no Bates numbers are available; categorical or

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blanket challenges are not permitted. If, after a meet-and-confer process

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pursuant to Local Rule 37-1, the parties cannot reach agreement, either

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the designating party or challenging party may request an Informal

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Discovery Conference pursuant to Magistrate Judge Oliver’s procedure

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set forth at http://www.cacd.uscourts.gov/honorable-rozella-oliver. If the

Any challenge to the

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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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parties are unable to resolve the challenge to the confidentiality

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designations in the course of this Informal Discovery Conference, the

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parties shall also address whether they anticipate the need to extend the

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amount of time necessary to complete the joint stipulation as set forth in

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Local 37-2.2, as well as the page limits set forth in Local Rule 37-2.3. In

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accordance with any directions or schedule given during the Informal

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Discovery Conference, the challenging party then may move the Court

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for the relief sought pursuant to Local Rule 37-2, et seq. The disputed

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material shall continue to be treated as designated, or redacted, until the

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Court orders otherwise—this includes any exhibits to the application to

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the Court, which should be filed under seal or otherwise handled in

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accordance with local Court procedures to prevent public disclosure until

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the Court orders otherwise. In any such application concerning a ruling

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on confidentiality or redacted information, the party claiming the

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designation of confidentiality or redaction has the burden of establishing

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that such confidential designation or redaction is proper.

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5.

No person or party subject to this Order shall distribute, transmit, or

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otherwise divulge any material marked CONFIDENTIAL or HIGHLY

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CONFIDENTIAL, except in accordance with this Order.

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compilations, copies, electronic images or databases containing

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CONFIDENTIAL or HIGHLY CONFIDENTIAL information shall

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be subject to the terms of this Order to the same extent as the material or

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information from which such compilations, copies, electronic images or

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databases is made or derived. Nothing in this Order shall restrict a

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producing party’s use of their own documents.

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6.

Any

Use of Confidential Material Limited to this Action: Any document or

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other material which is marked CONFIDENTIAL or HIGHLY

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CONFIDENTIAL, or the contents thereof, may be used by only this
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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Court and its personnel, court reporters, deponents, a party, or a party’s

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attorney, paralegal, expert witness, copy services or litigation vendors

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employed by a party’s attorney, or consultants, and only for the purpose

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of this action or appeal therefrom. Nothing contained in this Order shall

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prevent the use of any document or the contents thereof, at any

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deposition taken in this action. If a party intends to use material that has

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been marked as HIGHLY CONFIDENTIAL at the deposition of an

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employee or former employee of a non-producing party in this litigation,

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then the party shall notify the producing party ten (10) days in advance

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of the deposition that it intends to use that category of material. If the

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parties cannot agree on parameters for usage of the material at the

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deposition, then the parties will seek the direction of the Court as to the

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utilization of that category of material in the deposition.

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7.

Access to Confidential Material: If a party or attorney wishes to disclose

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any document or other material which is marked CONFIDENTIAL or

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HIGHLY CONFIDENTIAL, or the contents thereof, to any deponent

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or to any person actively working on, or retained to work on, this action

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(other than full-time employees of a party’s attorney), e.g., an expert

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witness, or consultant, the party or attorney making the disclosure shall

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do the following prior to disclosing any CONFIDENTIAL or HIGHLY

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CONFIDENTIAL information or materials to such person:

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(a)

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is to be made;
(b)

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Provide a copy of this Order to the person to whom the disclosure

Inform the person to whom disclosure is to be made that s/he is
bound by this Order;

(c)

Require the person to whom disclosure is to be made to sign an

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acknowledgment and receipt of this Order (Exhibit A), except as

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otherwise agreed by Designating Party, or ordered by the Court;
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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(d)

Instruct the person to whom disclosure is to be made to return or,

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in the alternative and with permission of the producing party, at

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the conclusion of the case to destroy any document or other

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material which is marked CONFIDENTIAL or HIGHLY

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CONFIDENTIAL, including compilations, copies, electronic

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images or databases made from CONFIDENTIAL or HIGHLY

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CONFIDENTIAL material;

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(e)

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Maintain a list of persons to whom disclosure was made and the
CONFIDENTIAL or HIGHLY CONFIDENTIAL materials

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which were disclosed to that person; and

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(f)

At the conclusion of this action, gather the CONFIDENTIAL or

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HIGHLY CONFIDENTIAL materials, copies thereof, and

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related compilations, copies, electronic images or databases, and

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return them to the party or attorney who originally disclosed them,

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or destroy them, providing a certificate of compliance with the

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terms of this Protective Order.

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8.

Disclosure Requirements for HIGHLY CONFIDENTIAL information

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to Competitor Related Consultants: Prior to disclosure, plaintiff(s) will

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inform the producing party of its intent to disclose HIGHLY

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CONFIDENTIAL material to anyone who is currently, or who at any

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time during the pendency of this litigation becomes, a consultant to a

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competitor (as such individuals are defined in Paragraph II.B.3 above) in

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the manner set forth below:

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(a)

Give at least ten (10) days’ notice in writing to counsel for the

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party

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CONFIDENTIAL of the intent to so disclose that information,

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although the disclosing party is not required to identify the

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intended recipient of such materials.

who

designated

such

information

as

HIGHLY

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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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(b)

Within ten (10) days thereafter, counsel for the parties shall

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attempt to resolve any disputes between them regarding the

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production of the HIGHLY CONFIDENTIAL material to the

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intended individuals.

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(c)

If the parties are unable to resolve any dispute regarding such

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production, within an additional seven (7) days, the party who

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designated

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CONFIDENTIAL shall file a motion objecting to the proposed

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disclosure. In making such motion, it shall be the producing

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party’s burden to demonstrate good cause for preventing the

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disclosure.

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(d)

the

information

in

question

as

HIGHLY

If the Court permits disclosure of the material designated as

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HIGHLY CONFIDENTIAL at issue, the information remains

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designated as HIGHLY CONFIDENTIAL and the individual

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receiving such information shall be bound by the requirements of

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Paragraph II.B.7.

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9.

Redaction of CONFIDENTIAL Material: The parties recognize that

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certain FDA, other governmental agencies, and certain federal statutes or

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regulations require redaction or non-disclosure of certain information

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prior to production of certain information by Defendants or agency non-

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disclosure of information and that Defendants will act consistently with

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those requirements and redact such information. The redacted documents

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shall include reason for redaction. Any party challenging information that

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has been redacted may do so in accordance with Paragraph II.B.4 of this

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Protective Order, or otherwise in accordance with the Federal Rules of

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Civil Procedure.

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10.

Use of CONFIDENTIAL Material at Depositions: All transcripts and
exhibits shall be treated as if designated CONFIDENTIAL for a period
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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of thirty (30) days after the final transcript is provided by the court

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reporter to the parties. Counsel for any party may designate during the

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deposition or during the thirty-day period after the final transcript is

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provided by the court reporter any portion of the transcript as

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CONFIDENTIAL or HIGHLY CONFIDENTIAL by denominating by

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page and line, and by designating any exhibits, that are to be considered

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CONFIDENTIAL or HIGHLY CONFIDENTIAL pursuant to the

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criteria set forth in this Order. Such designation shall be communicated to

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all parties. Transcript portions and exhibits designated in accordance with

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this paragraph shall be disclosed only in accordance with this Order,

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including in any motions or other papers filed in this proceeding. A party

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may challenge the CONFIDENTIAL or HIGHLY CONFIDENTIAL

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designation or portions thereof in accordance with the provisions of

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Paragraph II.B.4 above.

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Use of CONFIDENTIAL or HIGHLY CONFIDENTIAL Material in

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Filings: Where any CONFIDENTIAL or HIGHLY CONFIDENTIAL

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information or document is included in any papers filed with the Court, ,

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the filing party must provide at least 3-days advance notice to the

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producing party in advance of filing. The Parties shall then attempt to

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resolve the matter of continued confidentiality by: (a) withdrawing the

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CONFIDENTIAL or HIGHLY CONFIDENTIAL designation, (b)

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creating a mutually acceptable redacted version that suffices for purposes

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of the case and is no longer designated as CONFIDENTIAL or HIGHLY

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CONFIDENTIAL, or (c) where appropriate (e.g., in connection with

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discovery and evidentiary motions) provide the information solely for in

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camera review, or (d) applying to file such information under seal in

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accordance with the local rules and practices of this Court for such

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pleadings and documents.
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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12.

Subpoenas or Discovery Requests From Other Courts or Agencies. If

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another court or administrative agency subpoenas or orders production of

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CONFIDENTIAL or HIGHLY CONFIDENTIAL information that a

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party has obtained under the terms of this Order, or if parties to a different

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action serve discovery requests on a party in this action that would require

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disclosure of CONFIDENTIAL or HIGHLY CONFIDENTIAL

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information that a party has obtained under the terms of this Order, such

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party shall within two (2) days 1 of receiving the subpoena, order, or

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discovery request notify the producing party of the pendency of the

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subpoena, order, or discovery request in writing, and shall not produce the

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CONFIDENTIAL or HIGHLY CONFIDENTIAL information until the

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producing party has had reasonable time to take appropriate steps to

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protect the material unless otherwise ordered by the Court. It shall be the

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responsibility of the producing party to obtain relief from the subpoena,

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order, or discovery request prior to the due date of compliance, and to

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give the producing party an opportunity to obtain such relief, the party

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from whom the information is sought shall not make the disclosure before

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the actual due date of compliance set forth in the subpoena or order.

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13.

Inadvertent Failure to Properly Designate CONFIDENTIAL Material:

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Inadvertent production of any document or information without a

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designation of CONFIDENTIAL or HIGHLY CONFIDENTIAL will

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not be deemed to waive a party’s claim to its CONFIDENTIAL nature or

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stop said party from designating said document or information as

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CONFIDENTIAL or HIGHLY CONFIDENTIAL at a later date.

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Disclosure of said document or information by another party prior to such

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If the second day falls on a Saturday, Sunday, or legal holiday, the two-day period
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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later designation shall not be deemed a violation of the provisions of this

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Order.

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14.

Disclosure of Privileged Documents, “Clawback” Procedure:
(a)

This Order invokes the protections afforded by Federal Rule of

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Evidence (Fed. R. Evid.) 502(d). If a producing party produces (or

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discloses) to a receiving party any documents or information

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subject to a claim of privilege or immunity from discovery

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(including but not limited to attorney-client privilege, work

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product, and immunities created by federal or state statute or

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regulation), such production (or disclosure) shall not be deemed a

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waiver in whole or in part of the producing party’s claim of

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privilege or immunity from discovery, either as to specific

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documents and information produced (or disclosed) or on the same

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or related subject matter, either in this case or in any other action,

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investigation, or proceeding. In the event that a party produces or

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discloses documents, ESI, or other materials subject to a claim of

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privilege or immunity, the producing party shall, within ten (10)

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days of the discovery of the production or disclosure, notify the

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other party in writing of the production (or disclosure) of materials

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protected by any privilege or immunity. From the moment a party

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provides notice of production (or disclosure) of materials protected

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by any privilege or immunity, a receiving party shall not copy,

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distribute, or otherwise use in any manner the disputed documents

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or information, and shall instruct all persons to whom the receiving

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party has disseminated a copy of the documents or information that

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the documents or information are subject to this Order and may not

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be copied, distributed, or otherwise used pending further notice

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from the Court. The producing party may, in the notice, request a
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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“clawback” of the produced or disclosed material. The producing

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party shall provide or supplement the privilege log with a

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description of the produced or disclosed documents, or provide a

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redacted version of the document, where appropriate, stating the

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reason for redaction within five (5) days of providing such notice.

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The party receiving such clawback notice shall immediately and

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diligently act to retrieve the produced or disclosed documents, and

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all copies, including any loaded to databases, and within ten (10)

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days return them to the producing party or destroy them as agreed

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between the parties except as provided in paragraph (b). All notes

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or other work product of the receiving party reflecting the contents

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of such materials shall be destroyed and not used.

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(b)

The party receiving such materials, after receipt of the producing

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party’s notice, may move the Court to dispute the claim of privilege

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or immunity by serving a letter pursuant to Local Rule 37-1. If the

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receiving party elects to file such a motion, the receiving party,

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subject to the requirements below, may retain possession of the

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Inadvertently Produced Documents as well as any notes or other

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work product of the receiving party reflecting the contents of such

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materials pending resolution by the Court of the motion below, but

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shall segregate and shall not copy, use, or distribute them pending

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resolution of the motion.

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(c)

Nothing in this Order overrides an attorney’s ethical responsibilities

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with regard to materials that an attorney knows or reasonably

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should know were misdirected or inadvertently produced.

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B.

POST DISCOVERY PHASE

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1.

If any party or attorney wishes to file, or use as an exhibit or as

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testimonial evidence at a hearing or trial, any CONFIDENTIAL or
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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HIGHLY CONFIDENTIAL material, such party must provide

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reasonable notice to the producing party of the intended use of such

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information. The parties shall then attempt to resolve the matter of

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continued confidentiality by either (a) removing the CONFIDENTIAL

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or HIGHLY CONFIDENTIAL marking, (b) creating a mutually

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acceptable redacted version that suffices for purposes of the case, or (c)

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conferring about methods to avoid or limit public disclosure of such

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information during testimony. If an amicable resolution proves

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unsuccessful, the parties may present the issue to the Court for resolution

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in accordance with Paragraph II.B.4.

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confidentiality will have the burden of persuasion that the document or

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material should be withheld from the public record in accordance with

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local rules, procedures, and governing jurisprudence.

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2.

The proponent of continued

Survival of Protective Order: Throughout and after the conclusion of this

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litigation, including any appeals, the restrictions on communication and

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disclosure provided for herein shall continue to be binding upon the

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parties and all other persons to whom CONFIDENTIAL and HIGHLY

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CONFIDENTIAL material has been communicated or disclosed

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pursuant to the provisions of this Order or any other order of the Court.

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3.

Return or Destruction of CONFIDENTIAL Material Upon Termination

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of Litigation: Within sixty (60) days after the final termination of this

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action, each party, upon request of the other party, shall either return to

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the producing party, or destroy, all CONFIDENTIAL and HIGHLY

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CONFIDENTIAL material designated by any other party (including any

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such material disclosed to third persons), except for any attorneys’ work-

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product for the party returning the material, and shall provide

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confirmation in writing to opposing counsel if such materials are

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destroyed.
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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4.

Modification of this Order: Nothing in this Order shall prevent any

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other party from seeking amendments broadening or restricting the rights

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of access to or the use of CONFIDENTIAL and/or HIGHLY

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CONFIDENTIAL material or otherwise modifying this Order; and this

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Order may be amended without leave of the Court by the agreement of the

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undersigned attorneys for the parties in the form of a Stipulation that shall

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be filed in this case.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

9 DATED: May 12, 2020
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Respectfully submitted,
KIESEL LAW LLP

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By:

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/s/ Paul R. Kiesel
Paul R. Kiesel
Melanie Palmer
SALIM-BEASLEY, LLC
Robert L. Salim
Lisa Causey-Streete

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Attorneys for Plaintiff

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19 DATED: May 12, 2020

KING & SPALDING LLP

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By:

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/s/ William E. Steimle
Donald F. Zimmer
William E. Steimle

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Attorneys for Defendants

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

26 DATED: MAY 12, 2020
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Honorable Rozella A. Oliver
United States Magistrate Judge
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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION

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EXHIBIT A

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ACKNOWLEDGEMENT AND RECEIPT OF ORDER FOR PROTECTION OF

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CONFIDENTIAL INFORMATION

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5

I have read and understand the Protective Order entered in Westgate v.

6 Coloplast Corp. et al., No. 2:18-cv-03431 (C.D. Cal.) and I agree to be bound by its
7 terms.
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I hereby agree to submit to the jurisdiction of the United States District Court

9 for the Central District of California for enforcement of this Protective Order.
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11 Name (print):
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13 By (sign):
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15 Date:
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18 Dated: ___________________
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Attorneys for Plaintiff

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22 Dated: ___________________
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Attorneys for Defendant

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[PROPOSED] AGREED ORDER FOR PROTECTION OF CONFIDENTIAL INFORMATION