Martha A Montalvo-Ariri v. Johnson & Johnson Inc

Filing 47

STIPULATED PROTECTIVE ORDER by Magistrate Judge Sheri Pym [NOTE THE CHANGE MADE BY THE COURT TO 12(c)] (SEE ORDER FOR DETAILS). (kca)

1 MTUCKER ELLIS LLP
Mollie F. Benedict - SBN 187084
2 [e-mail]
Monee Takla Hanna SBN 259468
3 [e-mail]
515 South Flower Street
4 Forty-Second Floor
Los Angeles, CA 90071-2223
213.430.3400
5 Telephone:
Facsimile:
213.430.3409
6
7 Attorneys for Defendant Ethicon, Inc.
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

10

11 MARTHA A. MONTALVO-ARIRI,
12
13

Plaintiff,
v.

14 ETHICON, INC.
15
16
17

Defendants.

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Case No. 5:14-01421 VAP (SPx)
Honorable Virginia A. Philips
Honorable Sheri Pym, Magistrate
STIPULATED PROTECTIVE ORDER
[NOTE THE CHANGE MADE BY
THE COURT TO ¶12(c)]

The undersigned counsel for Defendant Ethicon, Inc. and Plaintiff Martha A.

18 Montalvo-Ariri (collectively, the “Parties” and each, a “Party”) in the above captioned
19 action agree that the Parties and non-parties will be required to produce or disclose in this
20 proceeding certain information and documents that are subject to confidentiality
21 limitations on disclosure under applicable laws and regulations and applicable privacy
22 rights. Such documents, described in more detail below, include information that is a
23 trade secret or other confidential research, development, or commercial information or is
24 of a private or personal nature. Disclosure of such information without reasonable
25 restriction on the use of the information may cause harm, damage, loss, embarrassment,
26 or disadvantage to the Producing Party or nonparty.
27

Accordingly, the Parties desire entry of an order, pursuant to the Federal Rules of

28 Civil Procedure 26(c) and other applicable laws and rules, that will facilitate the prompt
1
STIPULATED PROTECTIVE ORDER

1 resolution of concerns or disputes over confidentiality, that will adequately protect
2 material believed in good faith to be confidential and ensure that protection is afforded
3 only to material so entitled and that will address any inadvertent production of documents
4 or information protected from disclosure by the attorney-client privilege, work-product
5 immunity, or other applicable privilege.
6

Therefore, the Parties hereby STIPULATE, subject to the Court’s approval, and

7 the Court, for good cause shown and after having an opportunity to discuss this
8 Protective Order with the Parties, hereby ORDERS that the following procedures shall be

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9 followed in this proceeding to facilitate the orderly and efficient discovery of relevant
10 information while minimizing the potential for unauthorized disclosure or use of
11 confidential or proprietary information and documents.
12

1.

Purpose. The Parties recognize that preparation for any trial of this action

13 may require the discovery of certain information that a Designating Party, as defined
14 below, reasonably and in good faith believes should be subject to confidential treatment
15 under a protective order. The designation of a document, material, or information
16 (whether written, graphic or electronic) as being subject to the terms and conditions of
17 this Protective Order, is intended solely to facilitate prompt discovery and the preparation
18 for trial of this action.
19
20

2.

Scope
a.

This Protective Order shall govern all hard copy and electronic

21

materials, the information contained therein, and all other information

22

including all copies, excerpts, summaries, or compilations thereof,

23

whether revealed in a document, deposition, other testimony,

24

discovery response, or otherwise, that any party to this proceeding

25

(the “Producing Party” or “Designating Party) produces to any other

26

party (the “Receiving Party”) and that the Producing Party designates

27

as confidential under this Protective Order.

28
2
STIPULATED PROTECTIVE ORDER

b.

1

This Protective Order is binding upon all Parties and their counsel in

2

this proceeding , upon all signatories to Exhibit A, and upon (as

3

applicable) their respective corporate parents, subsidiaries, and

4

affiliates, including their successors, and their respective attorneys,

5

principals, experts, consultants, representatives, directors, officers,

6

employees, and others as set forth in this Protective Order— and upon

7

all signatories to Exhibit “A”.
c.

8

If additional parties are added other than parents, subsidiaries or

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affiliates of current parties to this litigation, their ability to receive a

10

document protected by this Protective Order will be subject to their

11

being bound, by agreement or Court Order, to this Protective Order.
d.

12

Third Parties who so elect may avail themselves of, and agree to be

13

bound by, the terms and conditions of this Protective Order and

14

thereby become a Producing Party for purposes of this Protective

15

Order.
e.

16

The entry of this Protective Order does not preclude any Party from

17

seeking further order of this Court, including modification of this

18

order, or from objecting to discovery that the Party believes to be

19

improper.
f.

20

Nothing herein shall be construed as an admission or concession by

21

any Party that designated Confidential Material, or any Document or

22

Information derived from Confidential Material, constitutes material,

23

relevant, or admissible evidence in this matter.

24

3.

Good Cause Statement

25

This Action involves trade secrets or other confidential research, development, or

26 commercial information or information which is of a private or personal nature for which
27 special protection from public disclosure and from use for any purpose other than
28 prosecution of this Action is warranted. To expedite the flow of information, facilitate
3
STIPULATED PROTECTIVE ORDER

1 the prompt resolution of disputes over confidentiality of discovery materials, adequately
2 protect Information the Parties are entitled to keep confidential, ensure that the Parties are
3 permitted reasonable necessary uses of such Information in preparation for and in the
4 conduct of trial, address their handling at the end of the litigation, and serve the ends of
5 justice, a protective order for such information is justified in this matter. The Parties
6 agree not to designate material as confidential without a good faith belief that it has been
7 maintained in a confidential, non-public manner, and there is good cause as to why it
8 should not be part of the public record in this case.

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4.

Definitions. In this Order, the terms set forth below shall have the following

10 meanings:
11

a.

“Proceeding” or “Action” means the above-entitled proceeding.

12

b.

“Court” means the Honorable Judge currently assigned to this

13

proceeding or any other judge to which this proceeding may be

14

assigned, including Court staff participating in such proceedings.

15

c.

“Document” or “Documents” shall have the meaning set out in the

16

Federal Rules of Civil Procedure 34(a) and, for purposes of this order,

17

shall include electronically stored information.

18

d.

testimony taken or used in this Proceeding.

19
20

e.

“Information” means the content of Documents or Testimony, as well
as any matter derived therefrom or based thereon.

21
22

“Testimony” means all depositions, declarations or other pre-trial

f.

“Confidential Material” means any Document (electronic or hard

23

copy), Testimony, or Information that a Designating Party reasonably

24

and in good faith believes to be entitled to confidential treatment

25

under applicable laws and that the Party designates as such in

26

accordance with the provisions of this Order. “Confidential Materials”

27

includes, but is not limited to:

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STIPULATED PROTECTIVE ORDER

1

i.

A plaintiff’s personal identifying information, financial

2

information, medical/insurance information, and, with respect

3

to any Party, any other information believed in good faith by

4

the Designating Party to be subject to protection from

5

disclosure by a natural person’s right of privacy under

6

applicable privacy laws or regulations;

7

ii.

A defendant’s or non-party’s trade secrets (as defined in the

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Uniform Trade Secrets Act); documents containing or

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constituting research and development, marketing or training,

10

confidential business, commercial, or proprietary information,

11

financial information or data, technical information,

12

manufacturing processes, product specifications, engineering

13

information and testing, distribution processes, or sensitive

14

health or medical information; or other proprietary or

15

confidential business information of commercial value and

16

believed in good faith to be subject to protection from

17

disclosure under applicable statutes, laws, or regulations; and

18

iii.

All material, data, and information obtained, derived, or

19

generated from “Confidential Material,” to the extent the same

20

are not publicly available or otherwise subject to the exclusions

21

herein.

22

iv.

Specifically excluded from the definition of “Confidential

23

Material” are:

24

1.

Any Documents, Testimony, or Information that have

25

been, or in the future will be, designated as “not

26

confidential” by order of any court;

27
28

2.

Any Documents, Testimony, or Information obtained, in
the past or in the future, by any person or entity through
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STIPULATED PROTECTIVE ORDER

Act or other public records request. In the event of a

3

dispute as to whether a Document, Testimony, or

4

Information is available through the Freedom of

5

Information Act or other public records request, the issue

6

will be resolved by Plaintiff’s counsel making an

7

appropriate request for the release of such material from

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the appropriate governmental agency and the granting of

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procedures established under the Freedom of Information

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such request by the agency or a court.
g.

10

The phrase “Confidential Material—Attorney Eyes Only” refers to

11

Confidential Material that the Designating Party believes in good faith

12

to contain highly confidential information the disclosure of which to

13

the Party’s competitors would cause the Designating Party serious

14

competitive and commercial harm. As used in this Order, and unless

15

otherwise specified, “Confidential Material” shall encompass

16

“Confidential Material—Attorney Eyes Only.”
h.

17

“Designating Party” means the Party or non-party that designates
Documents, Testimony, or Information as Confidential Material.

18
i.

19

“Disclose,” “Disclosed” or “Disclosure” means to reveal, divulge,

20

give, or make available Documents, Testimony, or any part thereof, or

21

any Information contained therein.
j.

22

“Third Party” means any natural person, partnership, corporation,

23

association, or other legal entity not named as a Party to this Action,

24

and their employees, directors, officers, attorneys, and agents.

25
26

5.

Designations of Confidential Material.
a.

Designation of Documents. A Designating Party may designate

27

Documents as Confidential Material or Confidential Material—

28

Attorney Eyes Only by placing a stamp or marking on the Documents
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STIPULATED PROTECTIVE ORDER

1

stating the following: CONFIDENTIAL, SUBJECT TO

2

PROTECTIVE ORDER, PRODUCED BY [PARTY NAME] IN

3

[NAME OF LITIGATION] or CONFIDENTIAL—ATTORNEY

4

EYES ONLY, SUBJECT TO PROTECTIVE ORDER,

5

PRODUCED BY [PARTY NAME] IN [NAME OF

6

LITIGATION]. Such markings shall not obscure, alter, or interfere

7

with the legibility of the original document.

8

i.

(hereinafter referred to collectively as “copies”) of Confidential

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All copies, duplicates, extracts, summaries, or descriptions

10

Material shall be marked with the same confidential stamp or

11

marking as contained on the original, unless the original

12

confidential stamp or marking already appears on the copies.

13
14

b.

Designation of Deposition Transcripts.
i.

During depositions, Confidential Material may be used or

15

marked as exhibits, but shall remain subject to this Order and

16

may not be shown to the witness unless such witness is a

17

Qualified Person as describe below.

18

ii.

If deposition Testimony or exhibits contain or refer to

19

Confidential Material, or if they contain or refer to Documents,

20

Testimony, or Information to be designated as Confidential

21

Material, the Designating Party, by and through counsel, shall

22

either

23

1.

On the record at the deposition, designate the Testimony
or exhibit(s) as Confidential Material or, as applicable,
identify already-designated Confidential Material, or

2.

No later than thirty (30) days after receiving a copy of the
deposition transcript, inform the deposing counsel and
counsel for other Parties that the Testimony or exhibit(s)
constitute Confidential Material; during the thirty-day
period, the entire deposition testimony, transcript, and

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25
26
27
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STIPULATED PROTECTIVE ORDER

exhibits shall be treated as Confidential Material under
this Order.

1
2
iii.

3

during the deposition, counsel for that Party may exclude from

4

the deposition all persons who are not Qualified Persons under

5

this Order.

6
iv.

7

containing Confidential Material shall be separately bound by

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the court reporter, who must affix to the top of each page the

10

legend “CONFIDENTIAL, SUBJECT TO PROTECTIVE

11

ORDER IN [NAME OF LITIGATION]” or

12

CONFIDENTIAL—ATTORNEY EYES ONLY, SUBJECT

13

TO PROTECTIVE ORDER IN [NAME OF

14

LITIGATION].

15
c.

interrogatory answers, responses to requests for admissions and the

18

requests themselves, requests for production of documents and things

19

and responses to such requests, pleadings, motions, affidavits, and

20

briefs that quote, summarize, or contain Confidential Material. To the

21

extent feasible, such Confidential Material shall be prepared in such a

22

manner that it is bound separately from material not entitled to

23

protection.

24

26
27
28

Written Pleadings, Motion Papers, and Discovery Materials. A party
may designate as Confidential Material portions of interrogatories and

17

25

When portions of a deposition transcript or its exhibits are
designated for protection, the transcript or exhibit pages

8

16

When a Party designates testimony as Confidential Material

d.

Designation of Other Confidential Material. With respect to
Confidential Material produced in some form other than as described
above, including, without limitation, compact discs or DVDs or other
tangible items, the Designating Party must affix in a prominent place
8
STIPULATED PROTECTIVE ORDER

1

on the exterior of the container or containers in which the Information

2

or item is stored the legend “CONFIDENTIAL, SUBJECT TO

3

PROTECTIVE ORDER, PRODUCED BY [PARTY NAME] IN

4

[NAME OF LITIGATION]” or CONFIDENTIAL—ATTORNEY

5

EYES ONLY, PRODUCED BY [PARTY NAME] IN [NAME OF

6

LITIGATION]. If only portions of the Information or item warrant

7

protection, the Designating Party, to the extent practicable, shall

8

identify the portions that constitute “Confidential Materials.”.
e.

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With respect to Documents or Information produced or disclosed by a

10

non-party, either the non-party or a Party may designate the

11

Documents or Information as Confidential Material pursuant to this

12

Order. A Party so designating material produced by a non-Party shall

13

notify all other Parties within 30 days of receipt of such Document or

14

Information that the same or portions thereof constitute or contain

15

Confidential Material. Until the expiration of 30 days, such Document

16

or Information produced or disclosed by any such non-party shall be

17

treated as Confidential Material under this Order.

18
19

6.

Required Treatment of Confidential Material.
a.

Except as specifically provided in this Order, counsel shall keep all

20

Confidential Material disclosed or produced to them within their

21

exclusive possession and control, shall take all necessary and prudent

22

measures to maintain the confidentiality of such materials and

23

information, and shall not permit unauthorized dissemination of such

24

materials to anyone.

25

b.

Confidential Material shall not be disclosed in any way to anyone for

26

any purpose other than as required for the preparation of trial in this

27

action or other related actions as defined in Paragraph 10, below.

28
9
STIPULATED PROTECTIVE ORDER

i.

1

Nothing in this Order shall preclude a Party from introducing

Material that is admissible under applicable law. The Parties

4

shall meet and confer regarding the procedures for use of

5

Confidential Material at trial or any evidentiary hearing and

6

shall move the Court for entry of an appropriate order. At trial

7

or evidentiary hearings, the Court may take such other measures

8

or enter separate orders, as the Court deems appropriate or upon

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into evidence at trial or evidentiary hearing any Confidential

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2

request by any Party, to protect the claimed Confidential
Material sought to be introduced or admitted.

10
11

c.

Access to and disclosure of Confidential Material shall be limited to

12

those persons designated as Qualified Persons, below. Any Qualified

13

Person who examines any Confidential Material shall not disseminate

14

orally, or by any other means, any protected information other than as

15

permitted by this Order.

16

d.

Confidential Material shall not be used for any business, competitive

17

or other non-litigation purpose without the express written consent of

18

counsel for the Designating Party or by order of the Court.

19

i.

Nothing in this Protective Order shall limit any Designating

20

Party’s use of its own documents or shall prevent any

21

Designating Party from disclosing its own Confidential

22

Material to any person for any purpose.

23

ii.

Nothing herein shall prevent Plaintiff from viewing or receiving

24

and retaining copies of her own medical records and from

25

disclosing such medical records to, and sharing them with, her

26

physicians.

27
28

iii.

Nothing herein shall prevent Defendant from viewing or
retaining copies of medical records of Plaintiff that are in its
10
STIPULATED PROTECTIVE ORDER

1

possession or control or from disclosing such records to other

2

Qualified Persons, regardless of whether or not the documents

3

have been designated as Confidential Material.
iv.

4

Disclosures described in the above sub-paragraphs shall not

of this Protective Order so long as the disclosure is made in a

7

manner that is reasonably calculated to maintain the

8

confidentiality of the designated Information, Testimony,

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affect any confidential designation made pursuant to the terms

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5

and/or Document.

10

e.

To avoid security risks inherent in certain current technologies and to

11

facilitate compliance with the terms of this Order, and unless

12

otherwise ordered or agreed upon in writing by the Designating Party

13

whose Confidential Material is at issue, all Qualified Persons with

14

access to Confidential Material shall comply with the following:

15

i.

Material.

16
17

They shall use secure means to store and transmit Confidential

ii.

Qualified Persons shall be prohibited from storing or

18

transmitting any Confidential Material in or via any online or

19

web-based storage location or service managed or maintained

20

by any third-party service provider, including any provider of

21

so-called “cloud computing” services, other than a reputable

22

litigation support service provider with a secure domestic

23

document hosting facility that uses encrypted web-enabled

24

software that allows for the secure and protected sharing and

25

collaboration of said Protected Material among Qualified

26

Persons and that does not employ so-called “cloud computing”

27

services.

28
11
STIPULATED PROTECTIVE ORDER

iii.

1

Notwithstanding the foregoing provision, Qualified Persons, as

transmitting Confidential Material to any other Qualified

4

Person through electronic mail, as attachments to an electronic

5

mail in the form of separate PDF files or zip files, through tools

6

provided by a reputable litigation support service as described

7

herein, or via FTP file transfer, as long as the person

8

transmitting the Protected Material takes reasonable steps to

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defined in the following paragraph, shall not be prohibited from

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2

protect the confidentiality of the Confidential Material.

10

7.

Qualified Persons With respect to Confidential Material. Confidential

11 Material (as distinct from Confidential Material—Attorney Eyes Only, covered in
12 Paragraph 7 below) may be disclosed only to the following persons (referred to as
13 “Qualified Persons” throughout this Order):
14

a.

When produced by any defendant in the action: Parties that are

15

Qualified Persons are all other defendants, their inside and outside

16

counsel and insurers, as applicable, the defendants’ employees

17

(including partners, directors, and officers), and the Plaintiff and her

18

attorneys in the action;

19

b.

When produced by Plaintiff: all defendants (including partners,

20

directors, officers, and employees of defendants) and their inside and

21

outside counsel and insurers;

22

c.

With respect to Qualified Persons encompassed by the preceding two

23

paragraphs (a) and (b), such persons include the attorneys’ employees

24

and agents (e.g., outside copy services, organizations involved in

25

organizing, filing, coding, converting, storing, or retrieving data or

26

designing programs for handling data connected with this action,

27

including the performance of such duties in relation to a computerized

28

litigation support system, and stenographers);
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STIPULATED PROTECTIVE ORDER

1

d.

Experts, consultants and case-specific medical professionals

2

(“Consultants”) whose assistance is necessary to assist counsel in the

3

preparation of this Proceeding, whether or not the Consultant is

4

designated as an expert and retained to testify, with the following

5

qualifications:

6

i.

Disclosure shall not be made to any consultant who, as

7

described in Paragraph 9, is employed by or a consultant to a

8

competitor of the Designating Party;
ii.

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Disclosure shall not be made to any consultant if counsel for the

10

Party retaining that consultant has actual knowledge that the

11

consultant has been found to have violated the terms of a

12

protective order in any litigation or legal proceeding; and
iii.

13

Any expert or medical professional to whom disclosure of

14

Confidential Material is authorized must be informed of this

15

Protective Order and must sign a copy of the Non-Disclosure

16

Agreement attached hereto as Exhibit “A.”

17

e.

A deponent or a witness at a deposition or pre-trial hearing, provided

18

there is a reasonable basis to believe that the witness will give relevant

19

testimony regarding the Confidential Material or that disclosure of

20

Confidential Material is necessary to prepare the witness for the

21

testimony.

22

i.

If a Party wishes to disclose Confidential Material to such a

23

deponent or witness before or during a deposition or pre-trial

24

hearing, the deponent or witness must be informed of this

25

Protective Order and either sign a copy of the Non-Disclosure

26

Agreement attached hereto as Exhibit “A,” or consent under

27

oath on the record to abide by its provisions.

28
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STIPULATED PROTECTIVE ORDER

ii.

1

The Parties agree that this provision does not preclude the

2

Designating Party from objecting to or moving to preclude

3

disclosure to any deponent or witness, or to seek amendment of

4

this provision in the future, if it believes it has a good faith

5

basis for such objection or motion;
f.

6

A person identified in the Confidential Material as an author, source,

7

addressee, or recipient of the communication, or who already has a

8

copy of the Confidential Material;
g.

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Any mediators or arbitrators selected to assist in resolution of this

10

matter, and their personnel who are actively engaged in assisting

11

them;

12

h.

The Court or any Court personnel, including any court reporters; and

13

i.

Any person mutually agreed upon among the Parties, provided that

14

such person has been informed of this Protective Order and has signed

15

a copy of the Non-Disclosure Agreement attached hereto as Exhibit

16

“A.”

17

8.

Qualified Persons With respect to Confidential Material—Attorney

18 Eyes Only.
19

Confidential Material—Attorney Eyes Only may be disclosed only to the

20 following Qualified Persons:
21

a.

Attorneys of record in this action, and their paralegals or their other

22

employees or agents (including litigation-support services) who

23

require access to Confidential Material—Attorney Eyes Only for the

24

purpose of litigation of this action;

25

b.

disclosure is necessary to the prosecution of the action;

26
27
28

Plaintiff, provided that her counsel believes in good faith that

c.

Experts who are Qualified Persons described in Paragraph 6.d and its
sub-paragraphs above;
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STIPULATED PROTECTIVE ORDER

d.

1

A person identified in the Confidential Material—Attorney Eyes Only

2

as an author, source, addressee, or recipient of the communication, or

3

who already has a copy of the Confidential Material;
e.

4

Any mediators or arbitrators selected to assist in resolution of this

5

matter, and their personnel who are actively engaged in assisting

6

them;

7

f.

The Court or any Court personnel, including any court reporters; and

8

g.

Any person mutually agreed upon among the Parties, provided that
such person has been informed of this Protective Order and has signed

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10

a copy of the Non-Disclosure Agreement attached hereto as Exhibit

11

“A.”

12
13

9.

Further Requirements With Respect to Qualified Persons.
a.

Before being given access to any Confidential Material, each

14

Qualified Person, other than the Court, the employees and staff of the

15

Court, counsel of record, and the direct employees of counsel of

16

record, and other than as set forth above with respect to those

17

witnesses to whom Confidential Material is disclosed or shown at a

18

deposition or pre-trial hearing as set forth in Paragraph 6(e), shall be

19

advised of the terms of this Order, shall be given a copy of this Order,

20

shall agree in writing to be bound by the terms of this Order by

21

signing a copy of the Non-Disclosure Agreement attached hereto as

22

Exhibit “A,” and shall consent to the exercise of personal jurisdiction

23

by this Court in any proceeding(s) to determine if the signatory

24

violated this Order. Counsel for each Party shall maintain a list of all

25

Qualified Persons to whom they or their client(s) have provided any

26

Confidential Material, which list shall be available for inspection by

27

the Court.

28
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STIPULATED PROTECTIVE ORDER

b.

1

The witness who is a Qualified Person pursuant to Paragraph 6(e) but
hereto as Exhibit “A” may be shown Confidential Material during his

4

or her testimony, but shall not be given a copy of the Confidential

5

Material to keep. Before reviewing his or her transcribed testimony

6

containing the Confidential Material for purposes of completing the

7

errata sheet, such witness shall sign a copy of the Non-Disclosure

8

Agreement attached hereto as Exhibit “A” and shall consent to the

9

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who has not signed a copy of the Non-Disclosure Agreement attached

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2

exercise of personal jurisdiction by this Court in any proceeding(s) to
determine if the signatory violated this Order.

10
c.

11

Any Confidential Material distributed or disclosed to a Qualified

12

Person who is a signatory of Exhibit “A” shall be returned to the

13

Party’s counsel who provided it to the Qualified Person or shall be

14

destroyed at the completion of the Qualified Person’s consultation or

15

representation in this case. Upon the request of the Designating Party

16

or the Court, each such Qualified Person shall execute an affidavit

17

stating that all such Confidential Material and copies thereof have

18

been returned or destroyed as required.
d.

19

The Court shall retain jurisdiction over any person or organization

20

authorized, as set forth above, to receive Confidential Material as

21

necessary to enforce the provisions of this Order.

22

10.

Non-Disclosure to Competitors. Notwithstanding the foregoing, without

23 express written consent or court order, in no event shall any disclosure of a defendant’s
24 Confidential Material or Confidential Material—Attorney Eyes Only be made to any
25 known Competitor of that defendant or to any person who, upon reasonable and good
26 faith inquiry, could be determined to be a current employee thereof or consultant doing
27 research for a competitor of a designating defendant irrespective of whether such
28 consultant or person is retained as an expert in this action. A “Competitor,” in the context
16
STIPULATED PROTECTIVE ORDER

1 of this Proceeding, shall mean any manufacturer of, or manufacturer involved in the sale
2 of medical devices or current employee of such entity.
a.

3

In the case of an expert or consultant, the expert or consultant is best

he or she is a current employee of or consultant doing research for a

6

Competitor of the designating defendant. Thus, Plaintiff will be

7

required by the Protective Order to make a full inquiry of the expert or

8

consultant and to obtain a declaration from him or her on these topics

9

TUCKER ELLIS LLP

suited to know whether he or she is a Competitor of a defendant, or if

5

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

4

before any information is shared with the expert or consultant.
b.

10

To this end, the expert or consultant shall provide written certification

11

whether he or she is a Competitor of a defendant, whether he or she is

12

currently employed by a Competitor, and whether he or she is

13

contracted with a Competitor and doing research for such Competitor.
c.

14

Plaintiff shall not disclose a defendant’s Confidential Material to any

15

expert or consultant who certifies that he or she is a Competitor of a

16

defendant, is currently employed by a Competitor, or is contracted

17

with a Competitor and doing research for such Competitor.
d.

18

Plaintiffs shall maintain each respective expert’s or consultant’s

19

certification under this paragraph for the duration of the litigation so

20

they may be submitted to the Court for in camera review in the event

21

of a dispute between the parties.

22
23

11.

Challenges to Designations.
a.

confidentiality.

24
25

The Designating Party bears the burden of establishing

b.

Nothing in this Order shall constitute a waiver of any Party’s right to

26

object to the designation or non-designation of Documents,

27

Testimony, or Information as Confidential Material.

28
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STIPULATED PROTECTIVE ORDER

1

c.

If a Party contends that any Document, Testimony, or Information has

2

been erroneously or improperly designated as Confidential Material,

3

or has been improperly redacted, the material at issue shall be treated

4

as confidential under the terms of this Order until

5

i.

the Parties reach a written agreement or

6

ii.

this Court issues an order determining that the material is not
confidential and shall not be given confidential treatment.

7
8

d.

discovery objects to such designation, said counsel shall advise

TUCKER ELLIS LLP

9
Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

In the event that counsel for a Party receiving Confidential Material in

10

counsel for the Designating Party, in writing, of such objections, the

11

specific Confidential Material (identified by Bates number, if

12

possible) to which each objection pertains, and the specific reasons

13

and support for such objections (the “Designation Objections”).

14

e.

Counsel for the Designating Party shall have 30 days from receipt of

15

the written Designation Objections to respond in writing as to whether

16

the designations will be maintained or withdrawn.

17

f.

If Designating Party does not de-designate the challenged

18

Confidential Material at issue, the parties shall meet and confer in

19

good faith, pursuant to Local Rule 37-1, to discuss the Designation

20

Objections and attempt to resolve the dispute.

21

g.

If, after meeting and conferring in good faith, the Parties are unable to

22

resolve the dispute regarding the Designation Objections, the Party

23

challenging the designations may file a motion with the Court seeking

24

an order to de-designate (i.e., to rule to be not confidential) the

25

Confidential Material subject to the Designation Objections (the

26

“Designation Motion”). The Designation Motion must comply with

27

Local Rules 37-1 and 37-2, including the joint stipulation

28

requirement.
18
STIPULATED PROTECTIVE ORDER

1

i.

2

the Designating Party is presumed to have designated the Confidential

3

Material in good faith, and any and all existing designations

4

challenged in such Motion shall remain in place.

5

ii.

6

applicability of its “confidential” designation.
12.

7

Pending a resolution of the Designation Motion by the Court,

The Designating Party shall have the burden of establishing the

Use of Confidential Material in Court Prior to Trial. The Parties will use

8 the following procedure, absent further Court Order, for disclosing Confidential Material

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

9 to the Court prior to trial.
a.

10

Confidential Material is not to be filed with the Court except when

11

required in connection with motions or other matters pending before

12

the Court.
b.

13

The Party seeking to file Confidential Material or a document

14

reflecting or including Confidential Material in support of a motion or

15

other proceeding pending before the Court may first notify the

16

Designating Party of its intent and seek agreement to de-designate

17

such material.
c.

18

Absent any such agreement, if Confidential Material or a document

19

reflecting or including Confidential Material is submitted to or

20

otherwise disclosed to the Court in connection with a motion or other

21

proceeding pending before the Court, such Confidential Material shall

22

be submitted to the Court for filing under seal consistent with Local

23

Rule 79-5 or any other sealing requirements of the Court.

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STIPULATED PROTECTIVE ORDER

1 13.

Redactions

2

a.

3

Material, and to comply with all applicable state and federal laws and

4

regulations, the Producing Party may redact from produced documents,

5

materials and other things, the following items, or any other item(s)

6

protected from disclosure by statute or decisional authority or agreed upon

7

by the parties or ordered by the Court:

To protect against unauthorized disclosure of Confidential Discovery

8

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

9
10
11
12
13
14

i. The names, street addresses, Social Security numbers, tax
identification numbers, and other personal identifying information of
patients, health care providers, and individuals in clinical studies or
adverse event reports. Other general identifying information,
however, such as patient or health provider numbers, shall not be
redacted unless required by state or federal law.

15

ii. The Social Security numbers, tax identification numbers and other

16

personal identifying information of employees in any records.

17
18
19
20
21

b. Defendant reserves the right to redact information that is nonresponsive
(including but not limited to proprietary financial material and products
unrelated to this litigation).
c. Pursuant to 21 C.F.R. §§ 314.430(e) & (f) and 20.63(f), the names of any

22

person or persons reporting adverse experiences of patients and the names of

23

any patients that are not redacted shall be treated as Confidential, regardless

24

of whether the document containing such names is designated as

25

Confidential Material.

26
27
28

Notwithstanding any of the foregoing provisions, nothing contained herein
shall be construed as a waiver of a party’s ability to challenge such redactions pursuant to
20
STIPULATED PROTECTIVE ORDER

1 the procedures set forth in Section 11 herein. The burden as to the propriety of any
2 redaction remains on the Designating Party at all times.
3

14.

Subpoena by Other Courts or by Agencies.
a.

4

If another court or an administrative agency requests, subpoenas, or

obtained such material under the terms of this Order, the Party so

7

requested, subpoenaed, or ordered shall notify the Designating Party

8

by electronic mail transmission, express mail, or overnight delivery to

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TUCKER ELLIS LLP

orders the disclosure of Confidential Material from a Party that has

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

5

counsel of record for the Designating Party not later than ten (10) days

10

prior to producing or disclosing any Confidential Material, and shall

11

furnish such counsel with a copy of the requests, subpoena, or order.

12

The recipient of the Subpoena shall not disclose any Confidential

13

Material pursuant to the Subpoena prior to the date specified for

14

production on the Subpoena.
b.

15

Upon receipt of this notice, the Designating Party may, in its sole

16

discretion and at its own cost, move to quash or limit the request,

17

subpoena, or order, otherwise oppose the disclosure of the

18

Confidential Material, or seek to obtain confidential treatment of such

19

Confidential Material, to the fullest extent available under law, by the

20

person or entity issuing the request, subpoena, or order. The Party

21

who received the request, subpoena, or order shall not oppose or

22

otherwise interfere with the Designating Party’s effort to quash or

23

limit the request, subpoena, or order.

24
25

15.

Disposition of Confidential Material.
a.

Upon the request of any Party after the final conclusion of this action

26

(including without limitation any appeals and after the time for filing

27

all appellate proceedings has passed), each Party so requested shall

28

return all Confidential Material to counsel for the Party that produced
21
STIPULATED PROTECTIVE ORDER

1

it, shall destroy it, or otherwise shall comply with an applicable order

2

of the Court, subject to the exception described herein.
b.

3

The return or destruction of Confidential Material under this

4

paragraph shall include, without limitation, all copies, and duplicates

5

thereof.
c.

6

The Parties shall certify, within 60 days of receipt of a written request

7

for certification, that all Confidential Material required to be returned

8

or destroyed have been so returned or destroyed.
d.

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

9

As an exception to the above requirements, and unless otherwise

10

ordered by the Court, counsel may retain: (a) copies of pleadings or

11

other papers that have been filed with the Court and that are

12

Confidential Material or that reflect, reference, or contain Confidential

13

Material; (b) their work product; and (c) official transcripts and

14

exhibits thereto. The terms and provisions of this Order shall continue

15

to apply to any such materials retained by counsel.

16

16.

Order Survives Termination of Action. After the termination of this action

17

by entry of a final judgment or order of dismissal, the provisions of this

18

Order shall continue to be binding. This Order is, and shall be deemed to be,

19

an enforceable agreement between the Parties, their agents, and their

20

attorneys. The Parties agree that the terms of this Order shall be interpreted

21

and enforced by this Court.

22
23

17.

No Waiver of Any Privilege Upon Inadvertent Production
a.

The Parties have agreed that, in discovery in this lawsuit, they do not

24

intend to disclose information subject to a claim of attorney-client

25

privilege or attorney work product protection.

26

i.

This Order does not effect or constitute a waiver of any Party’s

27

right to withhold or redact information protected from

28

disclosure by the attorney-client privilege, physician-patient
22
STIPULATED PROTECTIVE ORDER

1

privilege, work product doctrine, or any other applicable

2

privilege, protection, law, or regulation.
ii.

3

Pursuant to Federal Rule of Evidence 502(d) and Federal Rule
Party”) inadvertently discloses such privileged or work product

6

information (“Inadvertently Disclosed Information”), such

7

disclosure shall not constitute or be deemed a waiver or

8

forfeiture in whole or in part of any claim of attorney-client

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TUCKER ELLIS LLP

of Civil Procedure 26(b)(5)(B), if a Party (the “Disclosing

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

4

privilege or work product immunity that the Disclosing Party

10

would otherwise be entitled to assert with respect to the

11

Inadvertently Disclosed Information and its subject matter. As

12

set forth below, such Inadvertently Disclosed material shall be

13

returned to the Producing Party or destroyed upon request.
iii.

14

In accordance with the requirements of applicable law or rules

15

of procedure, and unless otherwise agreed by the Parties, with

16

each production of documents the Producing Party shall

17

provide a privilege log within sixty (60) days that identifies any

18

information or document withheld on the basis of privilege,

19

except for work-product prepared by or at the direction of

20

counsel after the institution of this action for purposes of the

21

litigation and privileged communications with counsel after the

22

institution of this action.

23

b.

Any party receiving materials that, on their face, appear to be covered

24

by a privilege, shall not copy, distribute, or otherwise use in any

25

manner such materials and shall provide prompt notice of the

26

disclosure to the Producing Party to afford the Producing Party the

27

opportunity to request return of the materials, in accordance with the

28

terms of this paragraph.
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STIPULATED PROTECTIVE ORDER

1

c.

If a Disclosing Party notifies the Receiving Party of Inadvertently

days: (i) return or destroy all copies of such information (including all

4

notes or other work product of the Receiving Party reflecting the

5

contents of the Inadvertently Disclosed Information) within their

6

possession, custody, or control—including all copies in the possession

7

of experts, consultants, or others to whom the Inadvertently Disclosed

8

Information was provided—and (ii) provide a certification of counsel

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TUCKER ELLIS LLP

Disclosed Information, the Receiving Party shall, within ten (10) court

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

2

that all such Inadvertently Disclosed Information has been returned or

10

destroyed. From the moment a Disclosing Party provides notice of

11

inadvertent production, a Receiving Party shall not copy, distribute, or

12

otherwise use in any manner the disputed documents or information,

13

and shall instruct all persons to whom the Receiving Party has

14

disseminated a copy of the documents or information that the

15

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

16

copied, distributed, or otherwise used pending a motion and further

17

notice from the Court.

18

d.

The Receiving Party may move the Court for an Order compelling

19

production of the Inadvertently Disclosed Information. Such motion

20

shall be filed or lodged conditionally under seal and shall not assert as

21

a ground for entering such an Order the fact or circumstances of the

22

inadvertent production. On any such motion, the Disclosing Party

23

shall retain the burden of establishing its privilege or work product

24

claims. Nothing in this paragraph shall limit the right of any Party to

25

petition the Court for an in camera review of the Inadvertently

26

Disclosed Information.

27
28
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STIPULATED PROTECTIVE ORDER

1
2

18.

Inadvertent Production or Disclosure of Confidential Material.
a.

Inadvertent or unintentional disclosure, without the required

3

confidentiality designation, of any Document, Testimony, or

4

Information that the Disclosing Party intended to designate as

5

Confidential Material (“inadvertent production”) shall not be deemed

6

a waiver in whole or in part of the producing Party’s claim of

7

confidentiality, either as to specific documents and information

8

disclosed or as to the same or related subject matter.

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

9

b.

In the event that a Designating Party makes such an inadvertent

10

production, that Party shall contact the receiving Party within 30 days

11

of the discovery of the inadvertent production, or as promptly as

12

reasonably possible thereafter, and inform the receiving Party or

13

Parties in writing of the inadvertent production and the specific

14

material at issue.

15

c.

Upon receipt of such notice, the receiving Party or Parties shall treat

16

the material identified in the notice as confidential until (i) the Parties

17

agree to non-confidential treatment of the subject material, or (ii) the

18

Court, on motion of any Party, issues an order addressing the

19

appropriate treatment of the subject material.

20

d.

Within ten (10) court days of receiving notice of the inadvertently

21

disclosed Confidential Material, the receiving Party shall return or

22

destroy all copies of such Confidential Material and provide a

23

certification of counsel that all such Confidential Material has been

24

returned or destroyed. Each receiving Party shall notify every person

25

or organization that received copies of or access to the material

26

identified in the notice that such material contains Confidential

27

Material.

28
25
STIPULATED PROTECTIVE ORDER

1
2

e.

As promptly as reasonably possible thereafter, the Disclosing Party
shall re-produce the Confidential Material with the required legend.

3
4 DATED: September 18, 2015
5

Tucker Ellis LLP

6
7

By:

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

9
10 DATED: September 18, 2015

/s/ Mollie F. Benedict
Mollie F. Benedict
Monee Takla Hanna
Attorneys for Defendant
Ethicon, Inc.

Welebir Tierney & Weck, PLC

11
12
13
14
15 IT IS SO ORDERED.
16
17 Dated: September 22, 2015
18

By:

/s/ Douglas F. Welebir
Douglas F. Welebir
Attorneys for Plaintiff Martha A.
Montalvo-Ariri

_______________________________
Honorable Sheri Pym
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

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TUCKER ELLIS LLP

UNITED STATES DISTRICT COURT

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

8

CENTRAL DISTRICT OF CALIFORNIA

10
11 MARTHA A. MONTALVO-ARIRI,
12
13

Plaintiff,
v.

14 ETHICON, INC.
15

Defendants.

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17

)
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)
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Case No. 5:14-01421 VAP (SPx)
ENDORSEMENT OF PROTECTIVE
ORDER
Complaint Filed: July 11, 2014

EXHIBIT A

18
19
20

ENDORSEMENT OF PROTECTIVE ORDER
I hereby attest to my understanding that information or documents designated as

21 Confidential Discovery Material are provided to me subject to the Protective Order dated
22 ______________, 2015 (the “Order”), in the above-captioned litigation (“Litigation”);
23 that I have been given a copy of and have read the Order; and, that I agree to be bound by
24 its terms. I also understand that my execution of this Endorsement of Protective Order,
25 indicating my agreement to be bound by the Order, is a prerequisite to my review of any
26 information or documents designated as Confidential Discovery Material pursuant to the
27 Order.
28
27
STIPULATED PROTECTIVE ORDER

1

I further agree that I shall not disclose to others, except in accord with the Order,

2 any Confidential Discovery Material, in any form whatsoever, and that such Confidential
3 Discovery Material may be used only for the purposes authorized by the Order.
4

I further agree to return all copies of any Confidential Discovery Material or any

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

5 document or thing containing Confidential Discovery Material I have received to counsel
6 who provided them to me, or to destroy such materials, upon completion of the purpose
7 for which they were provided and no later than the conclusion of this Litigation.
8
I further agree and attest to my understanding that my obligation to honor the
9
confidentiality of such Confidential Discovery Material will continue even after this
10
Litigation concludes.
11
I further agree and attest to my understanding that, if I fail to abide by the terms of
12
13 the Order, I may be subject to sanctions, including contempt of court, for such failure. I
14 agree to be subject to the jurisdiction of the United States District Court, Central District
15 of California, for the purposes of any proceedings relating to enforcement of the Order. I
16 further agree to be bound by and to comply with the terms of the Order as soon as I sign
17 this Agreement, regardless of whether the Order has been entered by the Court.
18
19 Date: ___________________________
20 By:
21

___________________________
Signature

22
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24

Printed Name

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STIPULATED PROTECTIVE ORDER

1
2
3
4
5
6

CERTIFICATE OF SERVICE
I hereby certify that on September 18, 2015, a copy of the foregoing
STIPULATED PROTECTIVE ORDER was filed electronically. Notice of this filing
will be sent to all parties by operation of the Court’s electronic filing system. Parties may
access this filing through the Court’s system.

7
8
9

TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

10

s/Monee Takla Hanna
Monee Takla Hanna
Attorneys for Defendant Ethicon, Inc.

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CERTIFICATE OF SERVICE