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