Howard Hill v. Davol, Inc. et al

Filing 39

STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 37 by Judge Otis D. Wright, II. See order for details. (jy)

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1 Michael K. Brown (SBN 104252) Email: Email: mmoberg@reedsmith. com Email: 2 Marilyn A. Moberg (SBN 126895) 3 Michelle L. Cheng (SBN 239711) 4 REED SMITH LLP 355 South Grand Avenue, Suite 2900 5 Los Angeles, CA 90071 Telephone: 213.457.8000 213.457.8080 6 Facsimile: 7 Attorneys for Defendants Davol Inc., Bard Devices, Inc. and C. R. 8 Bard, Inc. 9 REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 HOWARD HILL, Case No.: 5:16-CV-01759-ODW-KK Plaintiff, 13 14 vs. 15 DAVOL INC.; BARD DEVICES, INC.; C.R. BARD; and DOES 1-10, inclusive, 16 STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION Complaint Filed: August 17, 2016 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 1 [PROPOSED] STIPULATED PROTECTIVE ORDER 2 WHEREAS, during the course of this action, the Parties or others may be 3 required to produce in discovery information that a party or the person or entity from 4 whom discovery is sought considers to be confidential and proprietary information 5 under applicable constitutional and statutory law (“Confidential Information” as 6 further defined below); 7 WHEREAS, the Parties hereto desire to agree to a protective order for the 8 protection of confidential information during the pendency of this action and 9 thereafter; and REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 THEREFORE, IT IS STIPULATED that: 1. 11 This Protective and Confidentiality Order (“Protective Order”) 12 shall govern confidential, proprietary and other protected information that may be 13 disclosed during the course of Hill v. Davol, Inc., et al., Case No. 5:16-CV-0175914 ODW-KK (“this Action”) by C.R. Bard, Inc., Bard Devices, Inc., and Davol Inc. 15 (collectively, “Defendants”) and the individually named plaintiff in this Action (“the 16 Parties”). 17 2. For purposes of this Protective Order, any Party may designate as 18 “Confidential Material” any information reasonably and in good faith believed to be 19 suitable for protection under the Federal Rules of Civil Procedure or other applicable 20 law that is contained in any document, written discovery response, testimony, or other 21 material produced or provided by that Party or its representative(s) to one or more of 22 the other Parties, whether provided voluntarily, pursuant to formal discovery 23 procedures, or otherwise. 24 3. Any Party may designate a document as Confidential Material by 25 stamping it “Confidential,” “Subject to Protective Order” or a substantial equivalent of 26 either of these legends. All pages of any document that bears such a legend are 27 subject to this Protective Order. 28 –1– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 1 4. A Party may designate a document as Confidential Material after 2 such document has been produced to another Party in the course of this Action by 3 noticing each Party of the retroactive designation. 4 5. If responses to interrogatories, requests for admission, or other 5 written responses to discovery quote, summarize, or contain Confidential Material, the 6 Parties may designate them as Confidential Material by marking the face of any such 7 response with one of the legends set forth in paragraph (3) above and indicating the 8 page and line references of the material that is to be subject to this Protective Order. 9 6. The Parties may designate the transcript of any deposition in this REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 Action or any portion thereof, including exhibits thereto, as Confidential Material by 11 so advising the court reporter and the Parties on the record during the taking of the 12 deposition. If all or any portion of a deposition is designated as being subject to this 13 Protective Order, the court reporter and any Parties possessing any transcripts shall 14 label the cover page of each transcript or copy thereof to state that the deposition 15 includes Confidential Material, and shall label as confidential each of the pages of the 16 transcript or exhibits that contain Confidential Material. Any such depositions or 17 exhibits that are filed with the Court shall be filed under seal, bearing substantially the 18 following designation: “This portion of the deposition of is subject to the 19 Protective Order of the Court in Hill v. Davol, Inc., et al., United States District Court 20 for the Central District of California, Civil Action 5:16-CV-01759-ODW-KK. This 21 portion of the deposition shall remain sealed until further Order of the Court.” 22 7. Written and oral communications between or among counsel for 23 the Parties that quote from or describe or discuss the contents of Confidential Material 24 automatically shall be subject to this Protective Order. 25 8. Confidential Material shall be treated by the Parties and their 26 counsel as being confidential and private. Any copy made of Confidential Material 27 shall have the same status as the original. The disclosure and use of Confidential 28 Material shall be confined to the permissible disclosures and uses set forth below, and –2– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 1 in no event shall a Party make any disclosure or use of Confidential Material unless it 2 is reasonably necessary to effectively prosecute their respective claims and defenses in 3 this Action. All other disclosure and use of Confidential Material during the pendency 4 of this Action or after its termination is hereby prohibited. 5 9. Confidential Material may be disclosed only to the following 6 persons and only insofar as it is reasonably necessary to the effective prosecution of 7 the Parties’ claims and defenses: 8 a. Parties, their representatives, in-house counsel and regular 9 employees who are actively engaged in, or actively overseeing this Action; REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 b. Counsel of record, their associated attorneys, and support 11 staff; including paralegal and secretarial personnel; 12 c. Experts and consultants (including their employees) who are 13 retained by a Party to assist in the litigation of this Action; 14 d. Third-party contractors and their employees who are 15 retained by one or more Parties to provide litigation-support or copy services in 16 connection with the litigation of this Action; 17 e. Witnesses or prospective witnesses in this Action; 18 f. Court reporters and other persons involved in recording 19 deposition testimony in this Action; 20 g. Court personnel, the United States District Court for the 21 Central District of California, or, if on appeal, of a court with appellate jurisdiction; 22 and 23 24 h. Jurors in this action. Counsel for each Party disclosing Confidential Material in accordance 25 with this paragraph shall advise each person to whom such disclosure is made (except 26 Court personnel and jurors) of the terms of this Protective Order and of the obligation 27 of each such person to comply with those terms. Each Party retaining such experts 28 and/or consultants will be responsible to ensure that they have read the terms of this –3– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 1 Protective Order and have had an opportunity to ask about their obligations with those 2 terms. Counsel shall require that each such person sign an agreement to be bound by 3 the Protective Order, which is attached hereto as Exhibit A. Counsel shall maintain a 4 list of persons to whom confidential materials are disclosed (excluding jurors and 5 Court personnel). The list of those designated experts who have signed onto this 6 Confidentiality Order will not be provided to the opposing side until such time as the 7 Court designates the expert disclosure deadline. Any non-disclosed consultants’ 8 protective orders will be kept by the respective retaining side’s attorneys in 9 observance of the attorney work product privilege and only with good cause shown REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 and Court Order will this list be disclosed to the opposing side. Upon learning of any 11 disclosure of Confidential Material to any person not authorized by this paragraph to 12 receive Confidential Material, the Party who so learns shall immediately (i) inform in 13 writing the Party from which the Confidential Material was originally received of such 14 disclosure, including to whom the material was disclosed, and (ii) take all necessary 15 steps to retrieve as soon as possible each and every copy of all Confidential Material 16 from the unauthorized person and any person to whom the unauthorized person 17 disclosed the Confidential Material. 18 10. Each Party agrees that in the event it is served by a non-party with 19 a subpoena or request for production of Confidential Material originally received from 20 another Party, it will give sufficient notice to allow that Party a reasonable opportunity 21 to intervene to oppose such production. Any person to whom confidential materials 22 are provided under Paragraph 9, except for court personnel or jurors, shall also be 23 bound by this term. 24 11. Disclosure of Confidential Material in accordance with paragraph 25 (8) above shall not effect, nor shall it be deemed to effect, a waiver of the attorney26 client privilege, the work-product immunity, or any other privilege or immunity from 27 disclosure to which such Confidential Material may be entitled, whether in this Action 28 among the Parties herein or in any other action or as to any non-party. –4– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 1 12. Should any Party to whom Confidential Material is disclosed 2 object to the designation of that material as proprietary, confidential, or otherwise 3 protected, it shall make a good-faith effort to resolve the dispute informally with the 4 disclosing Party. Except where good cause is shown, all objections to the designation 5 of documents as Confidential Material must be interposed in writing, describing the 6 challenged documents by bates number, no later than 60 days before trial, or such 7 objections shall be deemed waived. Should the Parties be unable to resolve the 8 dispute, the Party opposing the inclusion of such material under this Protective Order, 9 within thirty days from receipt of the letter challenging the confidentiality of any REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 documents, may apply to the Court by motion for a ruling that the information should 11 not be entitled to protection under this Protective Order by way of formal motion in 12 compliance with Local Rules 37-1 and 37-2 (including the Joint Stipulation 13 requirement). The Party designating the material as confidential shall have the burden 14 of proving that said material is subject to protection. Until such time as the Court 15 rules on the motion, the material that is the subject of the dispute shall continue to be 16 subject to this Protective Order. In no circumstance may challenges to designations of 17 Confidential Material be made after this case is finally determined as to the 18 challenging party. 19 13. The inadvertent production by any party in the course of discovery 20 in these proceedings of a document subject to a claim of privilege, work product, or 21 other statutory or court-ordered confidentiality, will not result in a waiver of any of 22 the foregoing protections, whether in these or any other proceedings, for the produced 23 document or any other withheld document covering the same or similar subject 24 matter. 25 14. Confidential Material shall be used (if otherwise relevant and 26 admissible) solely in this Action for discovery purposes in accordance with the 27 provisions of this Protective Order, and such Confidential Material shall not be used 28 –5– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 1 in any other legal action or proceeding or for any other purpose without further order 2 of this Court. 3 15. Confidential Material may be provided to the Court in connection 4 with any pleading, motion, or other paper filed with the Court in this Action. The 5 Party providing such Confidential Material to the Court shall mark one of the legends 6 set forth in Paragraph 3 above on each page of the filing that contains such material. 7 Any pleading, motion, or other paper filed with the Court containing Confidential 8 Material shall be filed with the Clerk of the Court following Local Rule 79-5. Such 9 papers filed under seal shall not be unsealed or made a part of the public record except REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 by further order of this Court. 11 16. If during the course of document production it becomes known that 12 certain Confidential Material has been produced inadvertently, such inadvertent 13 production does not waive any privilege or claim of confidentiality that a Party may 14 possess as to that Confidential Material. The Party who receives any Confidential 15 Material shall notify the Party who produced those documents within fourteen days of 16 first discovering such inadvertent disclosure. That Party shall also not make any 17 reproductions of any form of those documents, and if any reproductions were made 18 prior to discovery of the documents confidentiality, that Party shall return any copies 19 along with the original to the producing Party. Under no circumstances shall any 20 Party use information obtained through an inadvertent disclosure to its benefit or the 21 producing Party’s detriment. Further, any Party who discloses any information 22 contained in inadvertently produced Confidential Material to any person not a Party to 23 or covered under this Protective Order shall be deemed in violation of this Protective 24 Order. A party may oppose the designation of documents as inadvertently produced 25 in accordance with the procedure set up in Paragraph 12 above, except that the party 26 opposing such designation must do so within 30 days of being notified by the 27 producing party of the inadvertent production. 28 –6– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION If a producing Party discovers that it has inadvertently produced 1 2 confidential documents to another Party, it shall within fourteen days of such 3 discovery ask for the return of such documents, including any copies, from the Party 4 who inadvertently received any confidential document. Failing to make a timely 5 request shall be deemed a waiver of any privilege or confidence as to those 6 documents. 7 17. The use in this litigation of a confidential document by the 8 disclosing party shall not constitute a waiver of confidentiality. Other uses or 9 disclosures of confidential documents may or may not create a waiver, depending on REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 applicable law. 11 18. Upon written demand by a Party, to be made within thirty days 12 after the final determination of this Action or all related actions, as defined previously, 13 as to the party to whom the documents were produced and, for material not specific to 14 a particular case, the final determination of any other action of which the same 15 counsel is counsel of record counsel of record for each Party receiving Confidential 16 Material shall assemble and return all such material to the disclosing Party or, 17 alternatively, shall immediately destroy all such material. All attorneys of record 18 shall, within forty-five days of an initial written demand under this paragraph, certify 19 that all Confidential Material, including any such material disclosed to any other 20 entity, has been returned or destroyed. The sole exception to the requirements 21 described above is that information that has been incorporated into attorney work 22 product or other privileged documents need not be returned or destroyed. Such 23 information shall be retained by the person to whom the information was produced, 24 and shall be treated as Confidential Material in accordance with this Order. 25 19. Each Party shall retain all rights and remedies available to it under 26 the law for the enforcement of this other against anyone who violates it. 27 28 –7– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 1 20. The restrictions of this Protective Order shall continue to apply 2 after this case is finally determined and the Court shall retain jurisdiction for all 3 purposes in connection therewith. 4 5 6 Dated: February 17 , 2017 7 McCUNE WRIGHT AREVALO LLP 8 By /s/ Kristy M. Arevalo Kristy M. Arevalo 9 Attorney for Plaintiff Howard Hill REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 11 Dated: February 17, 2017 REED SMITH LLP 12 By 13 14 /s/ Michelle L. Cheng Michael K. Brown Marilyn A. Moberg Michelle L. Cheng Attorneys for Defendants Davol Inc., Bard Devices, Inc. and C. R. Bard, Inc. 15 16 17 18 19 IT IS SO ORDERED: 20 Dated: February 21, 2017 21 The Honorable Otis D. Wright, United States District Court 22 23 24 25 26 27 28 –8– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION 1 ATTACHMENT A 2 AGREEMENT TO MAINTAIN CONFIDENTIALITY 3 4 5 I, ____________ [Name – Print or Type], have been given and read a copy of Stipulated Protective Order, dated _________, in this case, Hill v. Davol, Inc., et al., Case No. 5:16-CV-01759-ODW-KK United States District Court for the Central District of California. 6 7 I understand and will strictly adhere to the contents of said order. I understand that produced 8 material disclosed to me is subject to the order of the United States District Court for the Central 9 District of California, and that I am prohibited from copying, disclosing or otherwise using such REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 material except as provided by said court order. I understand that unauthorized disclosure of the 11 stamped confidential information may constitute contempt of court and agree to be subject to 12 personal jurisdiction of this Court for the purpose of enforcing my obligations under this Agreement, 13 the order, and any contempt proceeding that may be instituted for alleged violation thereto. I 14 understand also that my execution of this Agreement to Maintain Confidentiality, indicating my 15 agreement to be bound by said order, is a prerequisite to my review of any produced document and 16 materials. 17 [Date] _________________ 18 19 20 [Name]_____________________________ [Signature]___________________________ 21 22 23 24 25 26 27 28 –9– [PROPOSED] STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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