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)

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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

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