Monica Fernandez et al v. Boiron Inc et al

Filing 63

PROTECTIVE ORDER by Magistrate Judge Carla Woehrle, IT IS HEREBY ORDERED that a Stipulated Protective Order will govern the production and exchange of confidential information in the above-captioned case. re Stipulation for Protective Order 62 (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 13 14 15 CENTRAL DISTRICT OF CALIFORNIA MONICA FERNANDEZ; ELEANOR LANIGAN; MICHAEL MARTINEZ; GLENNA O'DELL; and GEMIS RANGEL, individually, and on behalf of all others similarly situated, 16 ORDER GRANTING STIPULATED PROTECTIVE ORDER Plaintiffs, 17 18 Case No. 11-CV-01867-JST-CW Note changes made by the court v. 19 BOIRON, INC.; and BOIRON USA, INC.; Inclusive, 20 Defendants. 21 22 23 24 25 26 // // 27 28 -1Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 The Court having read the parties’ Stipulated Protective Order, finding no 1 2 objection thereto and good cause appearing therefor, 3 IT IS HEREBY ORDERED that a Stipulated Protective Order will govern the 4 production and exchange of confidential information in the above-captioned case on 5 the following terms: 6 1. 7 DEFINITIONS 1.1. Discovery Material: all items or information, regardless of the medium or 8 manner generated, stored, or maintained that are produced or generated in disclosures 9 or responses to discovery requests, including but not limited to documents or tangible 10 things, electronic documents and electronic data files, testimony, answers to 11 interrogatories, requests for admissions and subpoenas in this matter. 12 “Discovery Material” shall also include all such information, documents and things 13 produced in connection with this action voluntarily, or pursuant to a rule, order or 14 other requirement. 15 1.2. The term Confidential Information: any Discovery Material that qualifies for 16 protection under standards developed under Fed. R. Civ. P. 26(c), including (a) 17 proprietary technical information and specifications, (b) trade secrets, (c) confidential 18 institutional knowledge, (d) proprietary business and financial information, (e) non- 19 public personal information, and (f) any other information of any party or non-party 20 the disclosure of which is likely to have the effect of causing harm to the competitive 21 position or business relationships of the person, partnership, corporation, or other 22 organization from which the information is obtained. Any Discovery Material that 23 becomes public or that otherwise loses its status as confidential over the course of this 24 action, other than by a violation of this Order, shall no longer be protected by this 25 Order. 26 1.3. Receiving Party: a Party that receives Discovery Material from a 27 28 -2Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 Producing Party. 2 1.4. 3 in this matter. 4 5 Producing Party: a Party or Third Party that produces Discovery Material 1.5. Designating Party: a Party or Third Party that designates Discovery Material that it produces in this matter as Confidential Information. 6 1.6. Attorney-Client Privilege: “Attorney-Client Privilege” as used herein 7 means “the protection that applicable law provides for confidential attorney-client 8 communications,” as set forth in Federal Rule of Evidence 502(g)(1). 9 1.7. Work-Product Protection: “Work-Product Protection” as used herein 10 means “the protection that applicable law provides for tangible material (or its 11 intangible equivalent) prepared in anticipation of litigation or for trial,” as set forth in 12 Federal Rule of Evidence 502(g)(2). 13 1.8. Reasonable Steps: “Reasonable Steps” as used herein includes: (a) for 14 electronic documents, conducting appropriate electronic searches designed to identify 15 Attorney-Client Privileged and Work-Product Protection documents, e.g. by searching 16 for terms such as “Privileged,” “Privilege,” “Attorney,” and “Confidential”; and (b) 17 for paper documents, manually reviewing the potentially responsive documents for 18 attorney-client privileged and work-product protected materials prior to production. 19 1.9. Inadvertent Disclosure: “Inadvertent Disclosure” as used herein means 20 “the disclosure of Attorney-Client Privilege or Work-Product Protection material 21 despite application of Reasonable Steps,” as defined herein. 22 2. SCOPE 23 The protections conferred by this Order cover Confidential Information and 24 Inadvertent Disclosures, as well as any data derived therefrom, including but not 25 limited to: excerpts, summaries, analyses, compilations, testimony, conversations, or 26 presentations. 27 28 -3Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 3. DURATION 2 The confidentiality obligations imposed by this Order shall survive this 3 litigation and remain in effect until a Designating Party agrees otherwise in writing or 4 a court order otherwise directs. 5 4. 6 DESIGNATING CONFIDENTIAL INFORMATION 4.1. Manner and Timing of Designations: Except as otherwise provided in 7 this Order, or as otherwise stipulated or ordered, the Producing Party shall designate 8 any Discovery Materials containing Confidential Information by marking each page 9 containing such information with the legend “CONFIDENTIAL” before it is disclosed 10 or produced. Information produced in native electronic format, however, which cannot 11 be stamped “CONFIDENTIAL” on a per-page basis, may be indicated as such by 12 labeling the CD-ROM upon which the native electronic information is provided as 13 “CONFIDENTIAL.” If only portions of the information or item warrant protection, 14 the Producing Party, to the extent practicable, shall identify the protected portions, 15 specifying whether they qualify as “CONFIDENTIAL.” 16 4.1.1. For Other Tangible Materials: Information in some tangible form, 17 the Producing Party shall designate Confidential Information by marking the 18 Discovery Material with the legend “CONFIDENTIAL.” 19 4.1.2. For Deposition Testimony and Exhibits: Information disclosed at 20 (a) the deposition of a party or one of its present or former officers, directors, 21 employees, agents or independent experts retained by counsel for the purpose of this 22 litigation, or (b) the deposition of a third party (which information pertains to a party) 23 may be designated as Confidential Information by indicating on the record at the 24 deposition that the testimony is “CONFIDENTIAL” subject to the provisions of this 25 Order. Any party or non-party may also designate information disclosed at such 26 deposition as Confidential Information by notifying the other parties in writing within 27 28 -4Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 thirty (30) days of receipt of the transcript specifying which pages and/or lines should 2 be treated as Confidential Information. All deposition transcripts shall be treated as 3 Confidential Information for a period of thirty (30) days after the receipt of the 4 transcript. 5 4.2. Inadvertent Failures to Designate: If corrected before either party is 6 prejudiced, an inadvertent failure to designate Discovery Material as Confidential 7 Information does not waive the Designating Party’s right to secure protection under 8 this Order for such material. If Discovery Material is appropriately designated as 9 Confidential Information after it was initially produced, the Receiving Party, on 10 timely notification of the designation, must make reasonable efforts to assure that the 11 Discovery Material is treated in accordance with the provisions of this Order. 12 5. 13 CHALLENGING CONFIDENTIALITY DESIGNATIONS 5.1. Timing of Challenges: Unless a Party’s challenge to a Designating 14 Party’s confidentiality designation is necessary to avoid foreseeable substantial 15 unfairness, unnecessary economic burdens, or a later significant disruption or delay of 16 the litigation, a Party does not waive its right to challenge a confidentiality designation 17 by electing not to initiate a challenge promptly after the original designation is 18 disclosed. 19 5.2. Meet and Confer: If a party objects to the classification of documents, 20 testimony, or information as Confidential Information or as an Inadvertent Disclosure 21 (“Objecting Party”) on the grounds that such documents, testimony, or information are 22 not entitled to such status and protection, the Objecting Party shall notify, via 23 electronic mail, counsel for the Designating/Producing Entity, setting forth the reasons 24 supporting such objections and identifying the documents, or page and line numbers 25 for the transcripts, in question. Within fourteen (14) calendar days, the Objecting 26 Party and the Designating/Producing Entity shall promptly confer in a good faith 27 28 -5Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 attempt to resolve the objection. If the parties cannot resolve the objection within the 2 next fourteen (14) calendar days, counsel for the Designating/Producing Entity may 3 apply to the Court for a determination whether the document is either Confidential 4 Information or an Inadvertent Disclosure. Designating/Producing Entity shall set 5 forth the grounds why the documents, testimony, or information designated as 6 Confidential Information/Inadvertent Disclosure are entitled to such status. 7 Objecting Party shall be given notice of the application for a Court’s determination 8 and an opportunity to respond in writing. While the motion is pending (and for any 9 period during which an appeal of such order is pending), the information shall be 10 treated as Confidential Information or an Inadvertent Disclosure, as applicable. If any 11 document designated as containing Confidential Information is later deemed, by the 12 Court, not to constitute Confidential Information, a copy of the document without the 13 CONFIDENTIAL designation shall be produced within seven (7) calendar days of the 14 Court’s ruling. If any document designated as Inadvertent Disclosure is later deemed, 15 by the Court, not to constitute an Inadvertent Disclosure, a copy of the document shall 16 be produced to all parties within seven (7) calendar days of the Court’s ruling. 5.3. 17 The Judicial Intervention: After engaging in the meet-and-confer process, a 18 challenging Party may apply to the Court for a determination of whether the 19 confidentiality or inadvertent disclosure designation is appropriate. Any motion 20 challenging a confidentiality or inadvertent disclosure designation must be brought in 21 accordance with local rule 37.accompanied by a declaration affirming compliance 22 with the meet-and-confer requirements imposed by the preceding paragraph. 23 Until the Court rules on the challenge, all Parties shall continue to afford the 24 material in question the level of protection to which it is entitled under the Producing 25 Party’s designation. 26 6. ACCESS TO AND USE OF CONFIDENTIAL INFORMATION 27 28 -6Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 6.1. 1 Basic Principles: A Receiving Party may use Confidential Information 2 produced by another in connection with this case only for prosecuting, defending, or 3 attempting to settle this litigation only under the conditions described herein. 4 Confidential Information must be stored and maintained by a Receiving Party at a 5 location and in a secure manner ensuring that access is limited to the persons 6 authorized under this Order. Any use of Confidential Information for any business, 7 investigative or enforcement purpose other than the prosecution, defense, appeal, or 8 settlement of the above-captioned action is expressly prohibited and would constitute 9 a material breach of this Stipulated Protective Order. Nothing in this Order shall in 10 any way restrict the use or dissemination by a Party or Third Party of its own 11 Confidential Information. 12 6.2. Disclosure of Confidential Information: No Confidential Information 13 may be disclosed to, disseminated to, or otherwise discussed with any person, except 14 with the prior written consent of the Designating Entity or as otherwise provided for 15 herein. 16 Designating Party, a Receiving Party may disclose Confidential Information only to: Unless otherwise ordered by the Court or permitted in writing by the 17 6.2.1. the Receiving Party’s counsel of record in this action, as well as 18 their employees to whom disclosure is reasonably necessary for purposes of this 19 litigation; 20 6.2.2. Parties (if an individual) and officers, directors, and employees of 21 Parties to whom the disclosure is reasonably necessary for this litigation (if a 22 corporation) and who have signed the “Agreement to Be Bound by Protective Order” 23 (Exhibit A); 24 6.2.3. experts retained by the parties with respect to this litigation to 25 whom disclosure is reasonably necessary and who have signed the “Agreement to Be 26 Bound by Protective Order” (Exhibit A); 27 28 -7Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 6.2.4. the Court and its personnel; 2 6.2.5. court reporters, their staffs, and litigation support providers to 3 whom disclosure is reasonably necessary for purposes of this litigation; 4 6.2.6. during the preparation for and conduct of their depositions, 5 witnesses in the action to whom disclosure is reasonably necessary and who have 6 signed the “Agreement to Be Bound by Protective Order” (Exhibit A); 7 6.2.7. the authors, addressees, or recipients of the document, or who is 8 specifically identified in the document, or whose conduct is purported to be 9 specifically identified in the document; and 6.2.8. any other person to whom the Designating Party agrees in writing 10 11 or on the record, or to whom the Court compels access. 12 7. SUBPOENA OR COURT ORDER TO PRODUCE 13 If a Receiving Party is served with a subpoena or an order issued compelling 14 disclosure of any information or items designated in this action as Confidential 15 Information, the Receiving Party must so notify the Designating Party, in writing 16 immediately and in no event more than three (3) business days after receiving the 17 subpoena or order. Such notification must include a copy of the subpoena or court 18 order. 19 The Receiving Party must immediately inform in writing the party who caused 20 the subpoena or order to issue in the other litigation that some or all the material 21 covered by the subpoena or order is the subject of this Order. In addition, the 22 Receiving Party must deliver a copy of this Order promptly to the party in the other 23 action that caused the subpoena or order to issue. 24 8. 25 UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL OR INADVERENTLY DISCLOSED INFORMATION 26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 27 28 -8Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 Confidential or Inadvertently Disclosed Information in a manner not authorized under 2 this Order, the Receiving Party must immediately: (a) notify the Designating Party in 3 writing about the unauthorized disclosures; (b) use its best efforts to retrieve all copies 4 of the Confidential or Inadvertently Disclosed Information; (c) inform the person or 5 persons to whom unauthorized disclosures were made of all the terms of this Order; 6 and (d) request such person or persons to execute the “Acknowledgment and 7 Agreement to Be Bound,” attached hereto as Exhibit A. 8 9. FILING CONFIDENTIAL INFORMATION 9 In filing materials with the Court in pretrial proceedings in this litigation, 10 Counsel shall seek to file under seal only those specific pages of documents and/or 11 deposition testimony transcripts designated “CONFIDENTIAL,” and only those 12 specific portions of briefs, applications, and other filings which contain verbatim 13 Confidential Information, or which set forth the substance of such information or data. 14 A Party seeking to file any Confidential Information under seal must comply with 15 Local Rule 79-5. 16 10. FINAL DISPOSITION 17 Unless otherwise ordered or agreed in writing by the Producing Party, within 18 sixty (60) days after (a) settlement documents are fully executed and the action is 19 dismissed or (b) the last day to appeal any judgment expires, whichever day is earlier, 20 each Receiving Party must return all Confidential Information to the Producing Party, 21 including all copies, abstracts, compilations, analyses, summaries or any other form of 22 reproducing or capturing any of the Confidential Information. With permission in 23 writing from the Designating Party, the Receiving Party may destroy some or all of 24 the Confidential Information instead of returning it. Notwithstanding this provision, 25 Counsel are entitled to retain an archival copy of all pleadings, motion papers, 26 transcripts, legal memoranda, correspondence or attorney work product, even if such 27 28 -9Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 materials contain Confidential Information. 2 11. 3 4 NON-WAIVER OF PRIVILEGE OR PROTECTION 11.1. The Attorney-Client Privilege or Work-Product Protections are not waived through Inadvertent Disclosure in connection with the instant litigation 5 11.2. Application of Non-Waiver of Privilege in Other Proceedings: Under 6 subsections (d) and (f) of Federal Rule of Evidence 502, the Attorney-Client Privilege 7 or Work-Product Protections are not waived through Inadvertent Disclosure in 8 connection with any other federal or state proceeding. 9 11.3 Notice of Inadvertent Disclosure: A party who wishes to assert the 10 Attorney-Client Privilege or Work-Product Protection as to an already produced 11 document (“Producing Entity”) shall provide notice via electronic mail to all counsel 12 of record (“Notice”). This Notice shall contain information sufficient to identify: (i) 13 the Inadvertently Disclosed document by its specific identifying characteristics, such 14 as Bates number, and shall include any other information reasonably necessary to 15 locate the document; and (ii) the privilege or protection that applies. 16 11.4. Return of Inadvertently Disclosed Documents: Within fourteen (14) 17 calendar days of receipt of a Notice, as described in Paragraph 21, any party having 18 received a document covered by the Notice (the “Receiving Party”) shall promptly 19 destroy the document described in the Notice and all copies thereof received from the 20 Producing Entity; provided that the Receiving Party shall return any original 21 document covered by the Notice to the Producing Entity. 22 12. 23 24 MISCELLANEOUS 12.1. Right to Further Relief: Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 25 12.2. Right to Assert Other Objections: By stipulating to the entry of this 26 Order, no Party or Third Party waives any right it otherwise would have to object to 27 28 -10Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 disclosing or producing any information or item on any ground not addressed in this 2 Order. Similarly, no Party or Third Party waives any right to object on any ground, 3 including relevance or admissibility, to use in evidence any of the material covered by 4 this Order. 5 12.3. Court Retains Jurisdiction: After the conclusion of this litigation, the 6 provisions of this Order shall continue to be binding and this Court shall retain 7 jurisdiction over the parties, and any other person who has access to Confidential 8 Information produced pursuant to this Order, for the enforcement of this Order. 9 SO ORDERED. 10 DATE: April 19, 2012 ____________/s/_______________ 11 Carla M. Woehrle 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _________________________________________ [print or type full name], 4 of______________________________________________ 5 address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on ________________________ 8 [date] in the case of Fernandez, et al. v. Boiron, Inc., et al., Docket No. 11-CV-01867- 9 JST-CW. I agree to comply with and be bound by all the terms of this Stipulated 10 Protective Order. I understand and acknowledge that failure to so comply could 11 expose me to sanctions and punishment in the nature of contempt. I solemnly promise 12 that I will not disclose in any manner any information or item that is subject to this 13 Stipulated Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. [print or type full 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Southern District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. 19 20 Date: 21 City and State where sworn and signed: 22 23 24 Printed Name: Signature: 25 26 27 28 -12Case No. 11-CV-01867-JST-CW ORDER GRANTING STIPULATED PROTECTIVE ORDER 5231940

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