Jillian Clarke v. Alcon Vision, LLC et al
Filing
22
PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Stipulation for Protective Order 21 . [SEE ORDER FOR DETAILS.] (et)
1
2
3
4
5
6
7
SEYFARTH SHAW LLP
Timothy L. Hix (SBN 184372)
thix@seyfarth.com
Ashley N. Arnett (SBN 305162)
aarnett@seyfarth.com
601 South Figueroa Street, Suite 3300
Los Angeles, California 90017-5793
Telephone: (213) 270-9600
Facsimile: (213) 270-9601
Attorneys for Defendant
ALCON VISION, LLC
(f/k/a ALCON LABORATORIES, INC.)
8
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
12
JILLIAN CLARKE, an individual,
Plaintiff,
13
14
15
16
v.
Case No. 2:19-cv-07644 ODW (ASx)
Hon. Otis D. Wright, II
PROTECTIVE ORDER
ALCON VISION, LLC, et al.,
Defendant.
Date Action Filed:
2019 Trial Date:
August 5,
None Set
17
18
19
1. A. PURPOSES AND LIMITATIONS
20
Discovery in this action is likely to involve production of confidential, proprietary,
21
or private information for which special protection from public disclosure and from use
22
for any purpose other than prosecuting this litigation may be warranted. Accordingly,
23
the parties hereby stipulate to and petition the Court to enter the following Stipulated
24
Protective Order. The parties acknowledge that this Order does not confer blanket
25
protections on all disclosures or responses to discovery and that the protection it affords
26
from public disclosure and use extends only to the limited information or items that are
27
entitled to confidential treatment under the applicable legal principles. The parties
28
further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective
1
Order does not entitle them to file confidential information under seal; Civil Local Rule
2
79-5 sets forth the procedures that must be followed and the standards that will be applied
3
when a party seeks permission from the court to file material under seal.
4
5
B.
GOOD CAUSE STATEMENT
6
This action involves employee compensation information and other
7
valuable commercial, financial, technical, and/or proprietary information for which
8
special protection from public disclosure and from use for any purpose other than
9
prosecution of this action is warranted. Such confidential and proprietary materials
10
and information consist of, among other things, confidential business or financial
11
information, information regarding confidential business practices, or other confidential
12
research, development, or commercial information (including information implicating
13
privacy rights of third parties), information otherwise generally unavailable to the public,
14
or which may be privileged or otherwise protected from disclosure under state or
15
federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the
16
flow of information, to facilitate the prompt resolution of disputes over confidentiality
17
of discovery materials, to adequately protect information the parties are entitled to keep
18
confidential, to ensure that the parties are permitted reasonable necessary uses of such
19
material in preparation for and in the conduct of trial, to address their handling at the end
20
of the litigation, and serve the ends of justice, a protective order for such information is
21
justified in this matter. It is the intent of the parties that information will not
22
bedesignated as confidential for tactical reasons and that nothing be so designated
23
without a good faith belief that it has been maintained in a confidential, non-public
24
manner, and there is good cause why it should not be part of the public record of this
25
case.
26
///
27
///
28
///
2
65742350v.1
1
2
3
4
5
6
2.
DEFINITIONS
2.1. Action: Jillian Clarke v. Alcon Vision, LLC, United States District Court for
the Central District of California, Case No. 2:19-cv-07644-ODW (ASx)
2.2. Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.3. “CONFIDENTIAL” Information or Items: information (regardless of how it is
7
generated, stored or maintained) or tangible things that qualify for protection under
8
Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
9
Statement.
10
11
12
13
14
2.4. Counsel: Outside Counsel of Record and House Counsel (as well as their
support staff).
2.5. Designating Party: a Party or Non-Party that designates information or items
that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.6. Disclosure or Discovery Material: all items or information, regardless of the
15
medium or manner in which it is generated, stored, or maintained (including, among
16
other things, testimony, transcripts, and tangible things), that are produced or generated in
17
disclosures or responses to discovery in this matter.
18
2.7. Expert: a person with specialized knowledge or experience in a matter
19
pertinent to the litigation who has been retained by a Party or its counsel to serve as an
20
expert witness or as a consultant in this Action.
21
2.8. House Counsel: attorneys who are employees of a party to this Action. House
22
Counsel does not include Outside Counsel of Record or any other outside counsel.
23
2.9. Non-Party: any natural person, partnership, corporation, association, or
24
25
other legal entity not named as a Party to this action.
2.10. Outside Counsel of Record: attorneys who are not employees of a party to
26
this Action but are retained to represent or advise a party to this Action and have
27
appeared in this Action on behalf of that party or are affiliated with a law firm which has
28
appeared on behalf of that party, and includes support staff.
3
65742350v.1
1
2.11. Party: any party to this Action, including all of its officers, directors,
2
employees, consultants, retained experts, and Outside Counsel of Record (and their
3
support staffs).
4
5
2.12. Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this Action.
6
2.13. Professional Vendors: persons or entities that provide litigation support
7
services (e.g., photocopying, videotaping, translating, preparing exhibits or
8
demonstrations, and organizing, storing, or retrieving data in any form or medium) and
9
their employees and subcontractors.
10
11
2.14. Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL.”
12
13
2.15. Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
14
15
3.
16
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected
17
Material (as defined above), but also (1) any information copied or extracted from
18
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
19
Material; and (3) any testimony, conversations, or presentations by Parties or their
20
Counsel that might reveal Protected Material. Any use of Protected Material at trial shall
21
be governed by the orders of the trial judge. This Order does not govern the use of
22
Protected Material at trial.
23
24
4.
DURATION
25
Even after final disposition of this litigation, the confidentiality obligations
26
imposed by this Order shall remain in effect until a Designating Party agrees otherwise in
27
writing or a court order otherwise directs. Final disposition shall be deemed to be the later
28
of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and
4
65742350v.1
1
(2) final judgment herein after the completion and exhaustion of all appeals, rehearings,
2
remands, trials, or reviews of this Action, including the time limits for filing any motions
3
or applications for extension of time pursuant to applicable law.
4
5
6
5.
DESIGNATED PROTECTED MATERIAL
5.1. Exercise of Restraint and Care in Designating Material for Protection.
7
Each Party or Non-Party that designates information or items for protection under this
8
Order must take care to limit any such designation to specific material that qualifies
9
under the appropriate standards. The Designating Party must designate for protection only
10
those parts of material, documents, items, or oral or written communications that qualify
11
so that other portions of the material, documents, items, or communications for which
12
protection is not warranted are not swept unjustifiably within the ambit of this Order.
13
Mass, indiscriminate, or routinized designations are prohibited. Designations that
14
are shown to be clearly unjustified or that have been made for an improper purpose
15
(e.g., to unnecessarily encumber the case development process or to impose unnecessary
16
expenses and burdens on other parties) may expose the Designating Party to sanctions.
17
If it comes to a Designating Party’s attention that information or items that it
18
designated for protection do not qualify for protection, that Designating Party must
19
promptly notify all other Parties that it is withdrawing the inapplicable designation.
20
5.2. Manner and Timing of Designations. Except as otherwise provided in this
21
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
22
ordered, Disclosure or Discovery Material that qualifies for protection under this Order
23
must be clearly so designated before the material is disclosed or produced.
24
Designation in conformity with this Order requires:
25
(a) for information in documentary form (e.g., paper or electronic documents,
26
But excluding transcripts of depositions or other pretrial or trial
27
proceedings), that the Producing Party affix at a minimum, the legend
28
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each
5
65742350v.1
1
page that contains protected material. If only a portion or portions of the
2
material on a page qualifies for protection, the Producing Party also must
3
clearly identify the protected portion(s) (e.g., by making appropriate markings in
4
the margins).
5
A Party or Non-Party that makes original documents available for inspection need
6
not designate them for protection until after the inspecting Party has indicated which
7
documents it would like copied and produced. During the inspection and before the
8
designation, all of the material made available for inspection shall be deemed
9
“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
10
copied and produced, the Producing Party must determine which documents, or portions
11
thereof, qualify for protection under this Order. Then, before producing the specified
12
documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
13
that contains Protected Material. If only a portion or portions of the material on a page
14
qualifies for protection, the Producing Party also must clearly identify the protected
15
portion(s) (e.g., by making appropriate markings in the margins).
16
(b) for testimony given in depositions that the Designating Party identify the
17
Disclosure or Discovery Material on the record, before the close of the deposition all
18
protected testimony.
19
(c) for information produced in some form other than documentary and for
20
any other tangible items, that the Producing Party affix in a prominent place on the
21
exterior of the container or containers in which the information is stored the legend
22
“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,
23
the Producing Party, to the extent practicable, shall identify the protected portion(s).
24
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
25
designate qualified information or items does not, standing alone, waive the Designating
26
Party’s right to secure protection under this Order for such material. Upon timely
27
correction of a designation, the Receiving Party must make reasonable efforts to assure
28
that the material is treated in accordance with the provisions of this Order.
6
65742350v.1
1
6.
2
3
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1. Timing of Challenges. Any Party or Non-Party may challenge a designation of
confidentiality at any time that is consistent with the Court’s Scheduling Order.
4
6.2. Meet and Confer. The Challenging Party shall initiate the informal dispute
5
resolution process set forth in the Court's Procedures and Schedules. see
6
http://www.cacd.uscourts.gov/honorable-alka-sagar
7
6.3. The burden of persuasion in any such challenge proceeding shall be on the
8
Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to
9
harass or impose unnecessary expenses and burdens on other parties) may expose the
10
Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
11
the confidentiality designation, all parties shall continue to afford the material in question
12
the level of protection to which it is entitled under the Producing Party’s designation until
13
the Court rules on the challenge.
14
15
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
16
7.1. Basic Principles. A Receiving Party may use Protected Material that is
17
disclosed or produced by another Party or by a Non-Party in connection with this Action
18
only for prosecuting, defending, or attempting to settle this Action. Such Protected
19
Material may be disclosed only to the categories of persons and under the conditions
20
described in this Order. When the Action has been terminated, a Receiving Party must
21
comply with the provisions of section 13 below (FINAL DISPOSITION).
22
Protected Material must be stored and maintained by a Receiving Party at a
23
location and in a secure manner that ensures that access is limited to the persons
24
authorized under this Order.
25
7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
26
ordered by the court or permitted in writing by the Designating Party, a Receiving
27
Party may disclose any information or item designated “CONFIDENTIAL” only to:
28
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
7
65742350v.1
1
as employees of said Outside Counsel of Record to whom it is reasonably necessary to
2
disclose the information for this Action;
3
4
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;
5
(c) Experts (as defined in this Order) of the Receiving Party to whom
6
disclosure is reasonably necessary for this Action and who have signed the
7
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
8
(d) the court and its personnel;
9
(e) court reporters and their staff;
10
(f) professional jury or trial consultants, mock jurors, and Professional
11
Vendors to whom disclosure is reasonably necessary for this Action and who have signed
12
the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
13
14
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
15
(h) during their depositions, witnesses, and attorneys for witnesses, in the
16
Action to whom disclosure is reasonably necessary provided: (1) the deposing party
17
requests that the witness sign the form attached as Exhibit A hereto; and (2) they will not
18
be permitted to keep any confidential information unless they sign the “Acknowledgment
19
and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
20
Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to
21
depositions that reveal Protected Material may be separately bound by the court reporter
22
and may not be disclosed to anyone except as permitted under this Stipulated Protective
23
Order; and
(i) any mediator or settlement officer, and their supporting personnel,
24
25
mutually agreed upon by any of the parties engaged in settlement discussions.
26
///
27
///
28
///
8
65742350v.1
1
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
2
OTHER LITIGATION
3
If a Party is served with a subpoena or a court order issued in other litigation that
4
compels disclosure of any information or items designated in this Action as
5
“CONFIDENTIAL,” that Party must:
6
7
8
(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 order to
9
issue in the other litigation that some or all of the material covered by the subpoena or
10
order is subject to this Protective Order. Such notification shall include a copy of this
11
Stipulated Protective Order; and
12
13
14
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
15
subpoena or court order shall not produce any information designated in this action as
16
“CONFIDENTIAL” before a determination by the court from which the subpoena or
17
order issued, unless the Party has obtained the Designating Party’s permission. The
18
Designating Party shall bear the burden and expense of seeking protection in that court of
19
its confidential material and nothing in these provisions should be construed as
20
authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
21
from another court.
22
23
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
24
IN THIS LITIGATION
25
(a) The terms of this Order are applicable to information produced by a Non-Party
26
in this Action and designated as “CONFIDENTIAL.” Such information produced by
27
Non-Parties in connection with this litigation is protected by the remedies and relief
28
provided by this Order. Nothing in these provisions should be construed as prohibiting a
9
65742350v.1
1
Non-Party from seeking additional protections.
2
(b) In the event that a Party is required, by a valid discovery request, to produce a
3
Non-Party’s confidential information in its possession, and the Party is subject to an
4
agreement with the Non-Party not to produce the Non-Party’s confidential information,
5
then the Party shall:
6
(1) promptly notify in writing the Requesting Party and the Non-Party that
7
some or all of the information requested is subject to a confidentiality agreement with a
8
Non-Party;
9
(2) promptly provide the Non-Party with a copy of the Stipulated Protective
10
Order in this Action, the relevant discovery request(s), and a reasonably specific
11
description of the information requested; and
12
13
(3) make the information requested available for inspection by the NonParty, if requested.
14
(c) If the Non-Party fails to seek a protective order from this court within 14 days
15
of receiving the notice and accompanying information, the Receiving Party may produce
16
the Non-Party’s confidential information responsive to the discovery request. If the Non-
17
Party timely seeks a protective order, the Receiving Party shall not produce any
18
information in its possession or control that is subject to the confidentiality agreement
19
with the Non-Party before a determination by the court. Absent a court order to the
20
contrary, the Non-Party shall bear the burden and expense of seeking protection in this
21
court of its Protected Material.
22
23
24
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
25
Protected Material to any person or in any circumstance not authorized under this
26
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
27
the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
28
all unauthorized copies of the Protected Material, (c) inform the person or persons to
10
65742350v.1
1
whom unauthorized disclosures were made of all the terms of this Order, and (d) request
2
such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
3
that is attached hereto as Exhibit A.
4
5
11.
6
PROTECTED MATERIAL
7
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
When a Producing Party gives notice to Receiving Parties that certain inadvertently
8
produced material is subject to a claim of privilege or other protection, the obligations of
9
the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
10
This provision is not intended to modify whatever procedure may be established in an e-
11
discovery order that provides for production without prior privilege review. Pursuant to
12
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the
13
effect of disclosure of a communication or information covered by the attorney-client
14
privilege or work product protection, the parties may incorporate their agreement in the
15
stipulated protective order submitted to the court.
16
17
18
19
20
12.
MISCELLANEOUS
12.1. Right to Further Relief. Nothing in this Order abridges the right of any person
to seek its modification by the Court in the future.
12.2. Right to Assert Other Objections. By stipulating to the entry of this
21
Protective Order no Party waives any right it otherwise would have to object to disclosing
22
or producing any information or item on any ground not addressed in this Stipulated
23
Protective Order. Similarly, no Party waives any right to object on any ground to use in
24
evidence of any of the material covered by this Protective Order.
25
12.3. Filing Protected Material. A Party that seeks to file under seal any Protected
26
Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
27
under seal pursuant to a court order authorizing the sealing of the specific Protected
28
Material at issue. If a Party's request to file Protected Material under seal is denied by the
11
65742350v.1
1
court, then the Receiving Party may file the information in the public record unless
2
otherwise instructed by the court.
3
4
13.
5
FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60 days
6
of a written request by the Designating Party, each Receiving Party must return all
7
Protected Material to the Producing Party or destroy such material. As used in this
8
subdivision, “all Protected Material” includes all copies, abstracts, compilations,
9
summaries, and any other format reproducing or capturing any of the Protected Material.
10
Whether the Protected Material is returned or destroyed, the Receiving Party must submit
11
a written certification to the Producing Party (and, if not the same person or entity, to the
12
Designating Party) by the 60 day deadline that (1) identifies (by category, where
13
appropriate) all the Protected Material that was returned or destroyed and (2) affirms that
14
the Receiving Party has not retained any copies, abstracts, compilations, summaries or
15
any other format reproducing or capturing any of the Protected Material. Notwithstanding
16
this provision, Counsel are entitled to retain an archival copy of all pleadings, motion
17
papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
18
deposition and trial exhibits, expert reports, attorney work product, and consultant and
19
expert work product, even if such materials contain Protected Material. Any such
20
archival copies that contain or constitute Protected Material remain subject to this
21
Protective Order as set forth in Section 4 (DURATION).
22
///
23
///
24
///
25
///
26
///
27
///
28
///
12
65742350v.1
1
14. Any violation of this Order may be punished by any and all appropriate
2
measures including, without limitation, contempt proceedings and/or monetary sanctions.
3
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
4
5
DATED September 10, 2020
6
7
8
/s/ Armen Zenjiryan
Attorneys for Plaintiff,
JILLIAN CLARKE
9
10
DATED September 10, 2020
11
12
13
/s/ Ashley N. Arnett
Attorneys for Defendant ,
ALCON VISION, LLC (f/k/a ALCON LABORATORIES, INC.)
14
15
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
16
DATED
September 11, 2020
17
18
19
20
________________________________
/ s / Sagar
Honorable Alka Sagar
United States Magistrate Judge
21
22
23
24
25
26
27
28
13
65742350v.1
1
ATTESTATION REGARDING SIGNATURES
2
I, Ashley N. Arnett, attest, pursuant to L.R. 5-4.3.4(a)(2)(i), that all signatories
3
listed, and on whose behalf the filing is submitted, concur in the filing’s content and have
4
authorized the filing.
5
DATED: September 10, 2020
6
SEYFARTH SHAW LLP
By:
7
8
9
/s/ Ashley N. Arnett
Timothy L. Hix
Ashley N. Arnett
Attorneys for Defendant
ALCON VISION, LLC (f/k/a ALCON
LABORATORIES, INC.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
65742350v.1
1
2
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I,_____________________ [print or type full name], of ________________
4
[print or type full address], declare under penalty of perjury that I have read in its entirety
5
and understand the Stipulated Protective Order that was issued by the United States
6
District Court for the Central District of California on ________ [date] in the case of
7
Jillian Clarke v. Alcon Vision, LLC, Case No. 2:19-cv-07644-ODW (ASx). I agree to
8
comply with and to be bound by all the terms of this Stipulated Protective Order and I
9
understand and acknowledge that failure to so comply could expose me to sanctions and
10
punishment in the nature of contempt. I solemnly promise that I will not disclose in any
11
manner any information or item that is subject to this Stipulated Protective Order to any
12
person or entity except in strict compliance with the provisions of this Order. I further
13
agree to submit to the jurisdiction of the United States District Court for the Central
14
District of California for the purpose of enforcing the terms of this Stipulated Protective
15
Order, even if such enforcement proceedings occur after termination of this action. I
16
hereby appoint _________________ [print or type full name] of __________________
17
[print or type full address and telephone number] as my California agent for service of
18
process in connection with this action or any proceedings related to enforcement of this
19
Stipulated Protective Order.
20
21
Date: ________________
22
23
City and State where sworn and signed: __________________
24
25
Printed name: ___________________
26
27
Signature:____________________
28
15
65742350v.1
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?