Medtronic Corevalve LLC et al v. Edwards Lifesciences Corporation et al

Filing 87

PROTECTIVE ORDER by Magistrate Judge Marc L. Goldman re Notice of Lodging stipulated protective order 81 (twdb)

1
2
3
4
5
6

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

David Martinez, Bar No. 193183
[e-mail]
ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
2049 Century Park East, Suite 3400
Los Angeles, CA 90067-3208
Telephone: [phone]
Facsimile: [phone]
Martin R. Lueck (pro hac vice)
[e-mail]
Jan M. Conlin (pro hac vice)
[e-mail]
Stacie E. Oberts (pro hac vice)
[e-mail]
ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs MEDTRONIC
COREVALVE LLC, MEDTRONIC CV
LUXEMBOURG S.A.R.L., and MEDTRONIC
VASCULAR GALWAY LTD.
William S. O’Hare, Bar No. 082562
[e-mail]
Deborah S. Mallgrave, Bar No. 198603
[e-mail]
SNELL & WILMER L.L.P.
600 Anton Blvd., Suite 1400
Costa Mesa, CA 92626-7689
Telephone: [phone]
Facsimile: [phone]
John E. Nathan (pro hac vice)
[e-mail]
Catherine Nyarady (pro hac vice)
[e-mail]
Brian P. Egan (pro hac vice)
[e-mail]
Christopher Terranova (pro hac vice)
[e-mail]
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants EDWARDS
LIFESCIENCES CORPORATION, EDWARDS
LIFESCIENCES LLC and EDWARDS
LIFESCIENCES (U.S.) Inc.
14423267.1

-1-

PROPOSED PROTECTIVE ORDER

1

UNITED STATES DISTRICT COURT

2

FOR THE CENTRAL DISTRICT OF CALIFORNIA

3
4

MEDTRONIC COREVALVE LLC,
et al.,

5
6

8

[PROPOSED] PROTECTIVE ORDER

v.
EDWARDS LIFESCIENCES
CORPORATION, et al.,
Defendants.

9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

Plaintiffs,

Case No. SACV11- 00961-JVS (MLGx)

11

PROTECTIVE ORDER

12
13

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following

14

order shall govern the production or provision of confidential information or things

15

by the parties in this case and any third parties (provided such third parties

16

recognize and accept the procedures herein) for the purpose of responding to

17

discovery requests or inquiries.

18
19
20
21
22
23
24
25
26

1.

Any party to this action, and any non-party from whom discovery is

sought in connection with this action, may designate as “Confidential” or “Highly
Confidential” any documents, testimony or other discovery material that contains
information of a confidential nature (“confidential information”). The term “Party”
shall refer to the named Parties in this litigation; all predecessors and successors
thereof; all present divisions, subsidiaries or affiliates of any of the foregoing
entities; and all directors, officers, employees, agents, attorneys, or other
representatives of any of the foregoing entities.

27
28
14423267.1

-2-

PROPOSED PROTECTIVE ORDER

1

2.

No “Confidential” designation shall be made unless the designating

financial, technical or commercial information or other information the receiving

5

party would not have access to but for this lawsuit. Such material shall include

6

information that is not freely accessible by the public, information to which the

7

producing party’s employees have only limited access, and/or information, the

8

dissemination or disclosure of which would present a real or potential economic

9

threat to the producing party. No “Highly Confidential” designation shall be made

10

L OS A NGELES

faith that the designated material constitutes confidential research, development,

4

A TTORNEYS A T L AW

party (or non-party from whom discovery is sought) reasonably believes in good

3

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

2

unless the designating party (or non-party from whom discovery is sought)

11

reasonably believes in good faith that the designated material comprises or contains

12

competitively sensitive information that could be used by the receiving party to

13

obtain a business (not legal) advantage over the producing party, including, but not

14

limited to, trade secrets, highly sensitive, non-public technical information,

15

documents disclosing the past, present, or intended design, development,

16

configuration, materials, manufacture, testing or trial, and the results of such testing

17

or trials, of the products of any Party, documents or information related to damages

18

(e.g. sales numbers, profit margins), or documents or

19

pending and not yet published patent applications.

20
21
22
23
24
25
26
27
28

3.

information related to

Material designated as “Confidential” or “Highly Confidential” shall

refer to confidential information (as defined above), including documents, data and
information, answers to interrogatories, answers to deposition questions (if the
deposition is so designated), responses to requests for admission, affidavits, expert
reports, and any information copied or extracted therefrom, as well as all copies,
excerpts, summaries, or compilations thereof, plus testimony, conversations, or
presentations by parties or counsel to or in court or in other settings that might
reveal confidential information.
14423267.1

-3-

PROPOSED PROTECTIVE ORDER

1

4.

Unless and until the Court rules otherwise, material marked as

2

“Confidential” or “Highly Confidential” shall be maintained in confidence by the

3

party to whom such material is produced and shall not be disclosed to any person

4

except:

5
6

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

11
12
13
14
15
16
17
18
19

(a)

Attorneys of record and associated counsel in this litigation, employees

of such attorneys, counsel to whom it is necessary that the information be disclosed
for purposes of this litigation, and vendors or service providers retained by the
parties or attorneys of record, including but not limited to translators and litigation
support services. As used herein, “associated counsel” shall mean attorneys who
are retained to represent or advise a party for purposes of this litigation, including
U.S. bar admitted and located contract attorneys, attorneys of record from Morris,
Nichols, Arsht & Tunnell LLP, Keker & Van Nest LLP, and Knobbe Martens
Olson & Bear LLP in Edwards Lifesciences AG v. CoreValve, Inc. (D. Del. 08-cv00091) and Edwards Lifesciences AG v. Medtronic, Inc. (D. Del. 09-873-GMS)
(collectively “the Delaware actions”), and attorneys of record from Kilpatrick
Townsend & Stockton LLP in Medtronic, Inc. v. Edwards Lifesciences Corp. (D.
Minn. 11-cv-1650) (“the Minnesota action”);
(b)

Any person hired by a party or its attorneys of record in this litigation,

20

including testifying experts, investigators, consulting experts, and any other

21

independent consultant, each of whom is not a competitor or employed by a

22

competitor of the producing party or an agent of a competitor of the producing

23

party, and who is not employed by or associated with either party, and who agrees

24

in writing to be bound by the terms of this Protective Order.

25

individuals must provide the following information: (i) the individual’s name and

26

business title; (ii) business address; (iii) business or profession; (iv) the individual’s

27

CV; (v) any previous or current relationship (personal or professional) with any of

28

the parties; (vi) a list of other cases in which the individual has testified (at trial or
14423267.1

-4-

Each of these

PROPOSED PROTECTIVE ORDER

the subject matter of the employment; and (viii) a complete and signed Protective

4

Order Undertaking, attached hereto as Exhibit A.

5

Undertaking must be served on the producing party before any access is allowed to

6

the producing party’s confidential information. Attorneys for the producing party

7

shall have ten (10) business days from the receipt of the Protective Order

8

Undertaking to object in writing to disclosure of confidential information to the

9

identified expert or consultant. After the expiration of the 10-day period, if no

10

L OS A NGELES

individual has been employed within the last four years and a brief description of

3

A TTORNEYS A T L AW

deposition) within the last six years; (vii) a list of all companies with which the

2

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

1

objection has been asserted, then the confidential information may be disclosed

11

pursuant to the terms of this Protective Order. Any objection must set forth in

12

detail the grounds on which it is based. Should the parties disagree with the basis

13

for the objection(s), the disclosing party must first attempt in good faith to resolve

14

the objection(s) informally with the objecting party. If the informal efforts do not

15

resolve the dispute within five (5) business days, the disclosing party may file a

16

motion requesting that the objection(s) be quashed. The objecting party shall have

17

the burden of proof by a preponderance of evidence on the issue of the sufficiency

18

the objection(s). Pending a ruling by the Court upon any such objection(s), the

19

confidential information shall not be disclosed to the person objected to by the

20

objecting party;

21
22
23
24
25
26
27

(c)

The Protective Order

Employees of a person qualified under paragraph 4(b) above, each of

whom is not a competitor or employed by a competitor of the producing party or an
agent of a competitor of the producing party, and who is not employed by or
associated with either party.

Such employees must sign a Protective Order

Undertaking, and such Protective Order Undertaking must be retained and
preserved during this litigation by the attorney of record, but such Protective Order

28
14423267.1

-5-

PROPOSED PROTECTIVE ORDER

1

Undertaking need not be disclosed to the producing party, unless the Court for good

2

cause orders otherwise;

3
4
5
6

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

11
12

(d)

Jury consultant(s) and/or mock jurors, each of whom is not a

competitor or employed by a competitor of the producing party or an agent of a
competitor of the producing party, and who is not employed by or associated with
either party. Such jury consultant(s) and/or mock jurors must sign a Protective
Order Undertaking, and such Protective Order Undertaking must be retained and
preserved during this litigation by the attorney of record, but such Protective Order
Undertaking need not be disclosed to the producing party, unless the Court for good
cause orders otherwise;
(e)

Two current in-house attorneys per side, each of whom has been

13

previously identified to and consented to by the producing party. Such attorneys

14

must sign a Protective Order Undertaking, and such Protective Order Undertaking

15

must be retained and preserved during this litigation by the attorney of record, but

16

such Protective Order Undertaking need not be disclosed to the producing party,

17

unless the Court for good cause orders otherwise. A party designating an in-house

18

attorney under this Paragraph must, as a part of that designation, state whether the

19

designated attorney will be provided access to both “Confidential” and “Highly

20

Confidential” information or will be provided access to only “Confidential”

21

information.

22

“Confidential” information subsequently may, upon written notice, modify its

23

designation, subject to triggering the prosecution bar of Paragraph 6, so that the in-

24

house attorney also receives “Highly Confidential” information. To the extent any

25

in-house attorney designated under this Paragraph is only provided access to

26

“Confidential” information of the opposing party and not “Highly Confidential”

27

information of the opposing party, such attorney is not subject to the provisions of

28

Paragraph 6 below;
14423267.1

Any party who designates an in-house attorney to receive only

-6-

PROPOSED PROTECTIVE ORDER

1
2
3
4
5
6

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

11
12
13

(f)

The authors and original recipients of the documents;

(g)

Persons testifying in depositions or in court proceedings provided that

(1) such documents or information were authored by, addressed to, or received by
such persons or other persons employed by the same entity as such persons, or (2)
such documents or information were produced by or obtained from such persons or
their employer;
(h)

Court reporters employed in this litigation, including their necessary

stenographic, videographic and clerical personnel; and
(i)

The Court, any juror or any other entity authorized by the Court or

required by law.
5.

In the event that a producing party elects to produce original

14

documents or other material for inspection, no markings need be made on the

15

documents or material by the producing party in advance of the inspection. During

16

the inspection, such documents or material shall be considered confidential

17

information to the extent and at the level designated by the producing party prior to

18

the inspection. After selection by the inspecting party of specific documents or

19

material for copying, the producing party shall make the appropriate copies, and the

20

appropriate confidentiality designations shall be placed on the documents or

21

materials before they are provided to the inspecting party.

22
23
24
25
26
27
28

6.

Notwithstanding any provision of this Order, every person of the

receiving party who receives and reviews information designated as “Highly
Confidential” or “Confidential” under this Order is precluded from drafting,
prosecuting, or supervising the drafting or prosecution of, or providing (verbally or
in tangible form, in whole or in part) such Confidential or Highly Confidential
information received under this Order to any person involved in drafting,
14423267.1

-7-

PROPOSED PROTECTIVE ORDER

prosecuting, or supervising the drafting or prosecution of, any patent applications

2

with the United States Patent and Trademark Office (“USPTO”) or any similar

3

proceedings in any other country, involving any patent or patent application having

4

claims or disclosures related to methods, procedures, or devices that concern

5

transcatheter aortic valves. This preclusion is limited to proceedings involving

6

patents and patent applications having an effective filing date before this action,

7

during this action, or within four (4) years after the termination of this action. For

8

purposes of clarity, “prosecution” does not include reexamination, reissue,

9

interference proceedings, or equivalent proceedings (e.g., Post-Grant Review),

10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

1

except that all persons subject to this Paragraph are prohibited from drafting new or

11

amended claims in any such proceedings. This Paragraph does not apply to any in-

12

house attorney designated under Paragraph 4(e) that is only provided access to

13

“Confidential” information of the opposing party.

14
15
16
17
18
19
20
21
22
23
24
25

7.

Notwithstanding any provision of this Order, every person of the

receiving party who receives and reviews information designated as “Highly
Confidential” under this Order, is precluded (unless otherwise agreed to in writing)
from performing development work directly or indirectly intended for commercial
purposes related to methods, procedures, or devices that concern transcatheter
aortic valves, for a period of four (4) years after the termination of this action. This
prohibition shall not preclude such persons from consulting in future litigation, so
long as such consulting does not involve development work directly or indirectly
intended for commercial purposes related to methods, procedures, or devices that
concern transcatheter aortic valves.
8.

Information disclosed at a deposition (or hearing), as well as through

26

resulting transcripts or exhibits, of a party, the present or former officers, directors,

27

employees, agents, or independent experts retained by a party for the purpose of

28

this litigation, or a third party in possession of confidential information of a party,
14423267.1

-8-

PROPOSED PROTECTIVE ORDER

1

may be designated as “Confidential” or “Highly Confidential” by indicating such

2

designation on the record, subject to the Protective Order, or by following the

3

procedure set forth in paragraph 10 below.

4
5
6

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

11
12

9.

Confidential information produced without the appropriate designation

of confidentiality may be properly designated subsequent to the production or
testimony when the producing party failed to make such designation at the time of
production or during the testimony through inadvertence or error. If discovery
material is subsequently designated, the receiving party shall promptly collect any
copies that have been provided to individuals other than those authorized in
paragraph 4 of this Order.
10.

Absent any overriding rules of this Court or orders of this Court, no

13

material containing confidential information shall be filed in the public record of

14

this action. In the event that any document or information that has been designated

15

“Confidential” or “Highly Confidential” is included with, or in any way disclosed

16

in, any pleading, motion, deposition transcript or other paper filed with the Court,

17

such document or information and related material shall be filed under seal with the

18

Court in accordance with Local Rule 79-5.1. Any document or thing containing

19

confidential information that is to be filed in this litigation must be filed in a sealed

20

envelope bearing such designation on its front face. In addition, the envelope shall

21

bear the caption of the case, shall contain a concise, non-disclosing inventory of its

22

contents for docketing purposes, and shall state thereon that it is filed under the

23

terms of this Protective Order.

24
25
26
27

11.

Inadvertent production of privileged information shall be handled as

follows, but this is without prejudice to the right of any party to apply to the Court
for further protection or disclosure relating to discovery:

28
14423267.1

-9-

PROPOSED PROTECTIVE ORDER

1

(a)

Pursuant to Federal Rules of Civil Procedure 26(b)(5), immediately

upon receiving notice from the producing party that information subject to the

3

attorney-client privilege or work-product immunity has been inadvertently

4

produced, the receiving party shall not review, copy, or otherwise disseminate the

5

documents or materials, nor shall it disclose their substance. The receiving party

6

shall return or destroy (at the producing party’s option) the documents or materials

7

and all copies within three (3) business days from receiving notice;

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

2

11
12
13
14
15
16
17
18

(b)

If the receiving party, without notice from the producing party,

determines that information subject to the attorney-client privilege or work-product
immunity has been inadvertently produced, the receiving party shall immediately
contact the producing party and advise them of the inadvertent disclosure. Pursuant
to Federal Rules of Civil Procedure 26(b)(5), the receiving party shall not review,
copy, or otherwise disseminate the documents or materials, nor shall it disclose
their substance. In addition, the receiving party shall return or destroy (at the
producing party’s option) the documents or materials and all copies within three (3)
business days from discovery of the inadvertent disclosure;
(c)

If the receiving party believes that it has a good-faith basis for

19

challenging the privilege claim, the receiving party shall provide the producing

20

party with a written explanation of the good-faith basis for the belief that the

21

inadvertently produced documents or materials are not privileged within three (3)

22

business days of the producing party's request for return. The producing party shall

23

respond in writing to the receiving party’s timely challenge to the privilege or

24

immunity claim within five (5) business days from receipt of the challenge;

25
26
27
28

(d)

In the event the parties cannot agree as to the privilege or immunity

status of the inadvertently produced documents or materials, the receiving party
shall have five (5) business days from receipt of the producing party’s written
14423267.1

- 10 -

PROPOSED PROTECTIVE ORDER

response to the privilege challenge to file a motion (in accordance with any

2

applicable standing orders or local rules) seeking an order compelling production of

3

the inadvertently produced documents or materials. The receiving party shall not

4

use the substantive content of the inadvertently produced documents or materials to

5

challenge their status as privileged or immune, but may submit the document under

6

confidential seal for the Court’s review. In the event that a motion is made, the

7

producing party shall have the burden of proving that the inadvertently produced

8

documents or materials are privileged or immune from discovery;

9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

1

11
12
13
14
15
16
17

(e)

Inadvertent disclosure of information subject to the attorney-client

privilege, work-product immunity, or any other applicable privilege or immunity
shall not constitute a waiver of such privilege(s). Pursuant to Rule 502(d) of the
Federal Rules of Evidence, the Court hereby orders that the attorney-client privilege
or work-product protection is not waived by disclosure connected with the abovereferenced matter and any such disclosure is also not waived in any other Federal or
State proceeding.
12.

A party may challenge the correctness or propriety of a confidentiality

18

designation of another party by requesting the Court to order a different designation

19

or de-designation. The designating party shall bear the burden of establishing a

20

need for the designation by a preponderance of the evidence. No party, however, is

21

obligated to challenge the correctness or propriety of any designation of

22

confidentiality under this Order, and any failure to challenge a designation shall not

23

prejudice or preclude a subsequent challenge to that or any other designation. A

24

challenge to a designating party’s confidentiality designation shall follow the

25

following provisions:

26
27
28

(a)

A party that elects to initiate a challenge to a designating party’s

confidentiality designation must do so in good faith and must begin the process by
14423267.1

- 11 -

PROPOSED PROTECTIVE ORDER

conferring directly with counsel for the designating party.

2

challenging party must explain the basis for its belief that the confidentiality

3

designation was not proper and must give the designating party an opportunity to

4

review the designated material, to reconsider the circumstances, and if no change in

5

designation is offered, to explain the basis for the chosen designation.

6

challenging party may proceed to the next stage of the challenge process only if it

7

has engaged in this meet and confer process first; and

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

1

11
12
13
14
15
16
17
18
19
20
21

(b)

In conferring, the

A

A party that elects to press a challenge to a confidentiality designation

after considering the justification offered by the designating party may file and
serve a motion under Civil Local Rule 7 that identifies the challenged material and
sets forth in detail the basis for the challenge.

Each such motion must be

accompanied by a competent declaration that affirms that the movant has complied
with the meet and confer requirements imposed in the preceding paragraph and that
sets forth with specificity the justification for the confidentiality designation that
was given by the designating party in the meet and confer dialogue. The burden of
persuasion in any such challenge proceeding shall be on the designating party.
Until the Court rules on the challenge, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the
producing party’s designation.
13.

All discovery material exchanged under this Protective Order between

22

the parties in this litigation shall be used solely for this litigation, unless otherwise

23

agreed to beforehand in writing by the producing Party or if the Court so orders.

24

Each Party reserves its right to seek or oppose an order from the Court permitting

25

the use in other litigation of confidential discovery material.

26
27
28

14.

Documents produced in the Delaware actions need not be re-produced,

and the parties agree to treat documents produced in the Delaware actions as if they
14423267.1

- 12 -

PROPOSED PROTECTIVE ORDER

were documents produced in this litigation. Upon entry of this Protective Order,

2

the attorneys of record in this litigation may have access to all documents and

3

things produced in the Delaware actions, as well as to any trial transcripts, trial

4

exhibits, deposition transcripts, deposition exhibits, expert reports and briefs filed

5

or served in the Delaware actions or in any appeal from either action. The Parties

6

represent that they have the authority of the parties to the protective order entered in

7

Edwards Lifesciences AG v. CoreValve, Inc. (D. Del. 08-cv-00091) to use the

8

documents described in this paragraph for the present litigation despite the

9

restrictions of paragraph 18 of the Delaware protective order.

10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

1

11
12
13
14
15
16
17
18
19
20
21
22
23
24

15.

If confidential information in the possession, custody or control of a

receiving party is sought by subpoena, request for production, interrogatory, or any
other form of discovery request or compulsory process of any court, administrative
body or legislative body, or any other person or tribunal purporting to have
opportunity to seek such information by compulsory process or discovery request,
including private parties, the receiving party shall: (i) within one (1) calendar week
after receipt thereof, give written notice by hand or facsimile or electronic mail of
such process or discovery request together with a copy thereof, to counsel for the
producing party; (ii) cooperate to the extent necessary to permit the producing party
to seek to quash such process or discovery request; and (iii) not produce or disclose
such confidential information until the producing party consents in writing to the
production, or the receiving party is ordered by a court of competent jurisdiction to
produce or disclose the confidential information.
16.

Within sixty (60) days after the conclusion of this litigation, including

25

any appeals, all confidential information designated and produced hereunder, and

26

all copies thereof, shall be returned to the producing party, or, at the option of the

27

producing party, be destroyed. Opposing counsel shall certify in writing that such

28

material has been destroyed. Notwithstanding the foregoing, outside counsel of
14423267.1

- 13 -

PROPOSED PROTECTIVE ORDER

1

record may retain all of their files from this litigation, including, but not limited to,

2

pleadings, correspondence, discovery requests and responses, whether or not such

3

files refer to or include any confidential information designated in this litigation.

4
5
6

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

17.

By stipulating to the entry of this Protective Order no party waives any

right it otherwise would have to object to disclosing or producing any information
or item on any ground not addressed in this Protective Order. Similarly, no party
waives any right to object on any ground to use in evidence of any of the material
covered by this Protective Order.
18.

Confidential information that the producing party considers to be

11

privileged, or subject to the work product immunity doctrine or some other

12

applicable immunity or privilege under the Federal Rules, that is dated after the

13

filing of this litigation, or that was created during and for the purpose of the

14

Delaware actions and involved communication with counsel of record in the

15

Delaware actions at the time of document creation, is not required to be listed on

16

any privilege log provided by the producing party to the requesting party. The

17

Parties agree, however, that should a Party elect not to rely on the advice of counsel

18

and produce documents in furtherance of that reliance (tentatively June 8, 2012),

19

the Party shall at the time of such election provide a privilege log of all withheld

20

documents relating to any opinion of counsel. Counsel for a party producing a

21

document may redact material deemed exempt from discovery because of the

22

attorney-client privilege or work-product immunity afforded by Rule 26(b), Fed. R.

23

Civ. P., or because the redacted material is not reasonably calculated to lead to the

24

discovery of admissible evidence, and may produce documents in a redacted form.

25

Any document from which material is redacted must identify in the redacted area

26

that a redaction was made. The reason for any such redaction must be stated in the

27

document itself or on a log provided to the receiving party. In the event of any

28
14423267.1

- 14 -

PROPOSED PROTECTIVE ORDER

1

dispute as to the propriety of the redaction, the party objecting to the redaction may

2

submit the issue to the Court for review and determination.

3
4
5

19.

The restrictions set forth in this Protective Order shall not apply to

information or material that:
(a)

7

Protective Order;

8
9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

6

11
12
13
14
15
16
17

(b)

was, is, or becomes public knowledge other than by violation of this

is acquired by the non-designating party from a third party having the

right to disclose such information or material; or
(c)

was lawfully possessed by the non-designating party prior to the entry

by the Court of the Protective Order.
20.

Nothing contained in this Protective Order shall preclude a party

producing confidential information from using its own confidential information in
any manner it sees fit without prior consent from any other party or from the Court.
21.

Each individual who receives any confidential information so

18

designated under this Protective Order agrees to submit himself/herself to the

19

jurisdiction of this Court for the purpose of any proceedings relating to compliance

20

with the Protective Order.

21
22
23
24

22. This Protective Order shall remain in full force and effect after the
termination of this litigation, until a designating party agrees in writing or until
canceled or otherwise modified by this Court.

25
26
27
28
14423267.1

- 15 -

PROPOSED PROTECTIVE ORDER

1

23.

Any Party hereto may at any time make a motion requesting that the

2

Court modify this Protective Order to provide additional or different protection

3

where it is deemed appropriate.

4
5

SO ORDERED.

6

8

Dated: February 16, 2012

9

_______________________________________
MARC L. GOLDMAN, U.S. Magistrate Judge

10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14423267.1

- 16 -

PROPOSED PROTECTIVE ORDER

1
2
3
4
5
6

8

EXHIBIT A

9
10

L OS A NGELES

A TTORNEYS A T L AW

R OBINS , K APLAN , M ILLER & C IRESI L.L.P.

7

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14423267.1

PROPOSED PROTECTIVE ORDER

1
2
3
4
5
6
7
8
9
10
11
LAW OFFICES
600 Anton Boulevard, Suite 1400
Costa Mesa, California 92626-7689
[phone]

Snell & Wilmer
L.L.P.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

David Martinez, Bar No. 193183
[e-mail]
ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
2049 Century Park East, Suite 3400
Los Angeles, CA 90067-3208
Telephone: [phone]
Facsimile: [phone]
Martin R. Lueck (pro hac vice)
[e-mail]
Jan M. Conlin (pro hac vice)
[e-mail]
Stacie E. Oberts (pro hac vice)
[e-mail]
ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs and Counterclaim
Defendants MEDTRONIC COREVALVE LLC,
MEDTRONIC CV LUXEMBOURG S.A.R.L., and
MEDTRONIC VASCULAR GALWAY LTD.
William S. O’Hare, Bar No. 082562
[e-mail]
Deborah S. Mallgrave, Bar No. 198603
[e-mail]
SNELL & WILMER L.L.P.
600 Anton Blvd., Suite 1400
Costa Mesa, CA 92626-7689
Telephone: [phone]
Facsimile: [phone]
John E. Nathan (pro hac vice)
[e-mail]
Catherine Nyarady (pro hac vice)
[e-mail]
Brian P. Egan (pro hac vice)
[e-mail]
Christopher Terranova (pro hac vice)
[e-mail]
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants and CounterclaimPlaintiffs EDWARDS LIFESCIENCES
CORPORATION, EDWARDS LIFESCIENCES
LLC and EDWARDS LIFESCIENCES (U.S.) INC.
13523617.1

proposed protective order

1

UNITED STATES DISTRICT COURT

2

FOR THE CENTRAL DISTRICT OF CALIFORNIA

3
4

MEDTRONIC COREVALVE LLC,
et al.,

5
6
7
8

Plaintiffs,
v.

Case No. SACV11 00961 JVS (MLGx)
PROTECTIVE ORDER
UNDERTAKING

EDWARDS LIFESCIENCES
CORPORATION, et al.,
Defendants.

9
10

PROTECTIVE ORDER UNDERTAKING

11

I, _________________, having been retained by ______________________
in connection with the above-captioned lawsuit (or I, ________________, in-house
counsel for ________________) hereby acknowledge that I am about to receive
confidential information as defined in the Protective Order agreed to by the parties
and so ordered by the Court in this case.

LAW OFFICES
600 Anton Boulevard, Suite 1400
Costa Mesa, California 92626-7689
[phone]

Snell & Wilmer
L.L.P.

12
13
14
15
16
17
18
19
20
21

I certify my understanding that the confidential information is being provided
to me pursuant to the terms and restrictions of the Protective Order, and that I have
been given a copy of and have read and understood my obligations under the Order.
I hereby agree to be bound by the terms of the Protective Order. I clearly
understand that confidential information and my copies of notes relating thereto
may only be disclosed to or discussed with persons allowed under the Protective
Order to receive such information.
I will return upon request all materials containing confidential information
and all copies thereof.

22
23
24
25
26
27
28
13523617.1

-2-

proposed protective order

1
2
3
4

I hereby submit to the jurisdiction of this Court for the purposes of
enforcement of the Protective Order and waive any and all objections to jurisdiction
and venue.
I make all statements above under penalty of perjury.

5

__________________________

6

Printed name:________________

7

Company name/address/phone:

8

___________________________

9

___________________________

10

___________________________

11
LAW OFFICES
600 Anton Boulevard, Suite 1400
Costa Mesa, California 92626-7689
[phone]

Snell & Wilmer
L.L.P.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13523617.1

-3-

proposed protective order