Aesthetic Associates Inc P.S. v. Atlantis Eyecare Inc et al

Filing 28

STIPULATED PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order 27 . (see document for details). (dro)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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AESTHETIC ASSOCIATES, INC.,
10 P.S.;
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Plaintiff,

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vs.

Case No. SACV 13-cv-01693-DOC
(RNBx)
[PROPOSED]
STIPULATED PROTECTIVE ORDER

13 EYECARE SPECIALISTS MEDICAL
GROUP, INC. DBA ATLANTIS
14 EYECARE; EHSAN SADRI MD,
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Defendants.

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GOOD CAUSE STATEMENT

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WHEREAS, plaintiff AESTHETIC ASSOCIATES, INC., P.S.

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(“Plaintiff”), on the one hand, and defendants EYECARE SPECIALISTS

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MEDICAL GROUP, INC. DBA ATLANTIS EYECARE (“Atlantis”) and EHSAN

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SADRI, M.D. (“Dr. Sadri”), on the other hand (hereinafter, Atlantis

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and Dr. Sadri sometimes collectively referred to as the “Defendant

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Parties”; and Plaintiff and the Defendant Parties sometimes

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individually referred to as a “Party” or collectively referred to

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as “the Parties”), each agree that discovery in this action may

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involve disclosure of certain confidential, trade secret, sensitive

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or proprietary business information about the Parties, their
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STIPULATED PROTECTIVE ORDER

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respective patients, and/or their respective businesses; and

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WHEREAS, the Parties are in a competitive business

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environment, and do not wish to disclose to each other

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confidential, trade secret, sensitive or proprietary business

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information (as defined below) without a protective order; and

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WHEREAS, the unprotected disclosure of such confidential,

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trade secret, sensitive or proprietary business information could

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cause serious injury and damage to the Parties and/or intrude on

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the privacy rights of their respective patients;

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NOW, THEREFORE, subject to and conditional upon the

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Court’s approval of this Stipulated Protective Order, the Parties

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hereby stipulate through their respective counsel of record as set

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forth below that discovery in this matter shall be had pursuant to

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the following Stipulated Protective Order:

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1.

DEFINITIONS
1.1.

As used herein, the phrase "Confidential

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Information" means and includes both "CONFIDENTIAL" and "ATTORNEYS'

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EYES ONLY" designated information and documents, as defined below.

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1.2.

As used herein, the designation

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"CONFIDENTIAL" means and applies to: (a) any patient, medical or

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billing information, medical records or reports, patient files,

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lists or identifying information, proprietary business information,

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financial information, credit card information, cost information,

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supplier lists and information, price lists or pricing information,

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sales records, invoices and summaries, payment information, checks

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and bank records, corporate minutes and resolutions, purchase

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orders, shipping documents, product designs, drawings,

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specifications and schematics, original product research,
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STIPULATED PROTECTIVE ORDER

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development, manufacturing and production information, information

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regarding websites and their development, optimization and

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maintenance, internal computer data, metadata and access data,

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which are not generally known and which the producing Party has not

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made public; (b) as set forth in California Civil Code section

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3426.1, which is incorporated herein by this reference,1 any

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information, document or thing produced in discovery which contains

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trade secrets of the producing Party; (c) any data derived from

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such information, documents or things, including any summaries,

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compilations, quotes, or paraphrases thereof; and/or (d) any other

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sensitive commercial or personal information having a similar

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degree of confidentiality and value to the producing Party similar

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to that of the foregoing (excluding information covered by the

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attorney-client privilege or attorney work product doctrine).

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1.3.

As used herein, the designation "ATTORNEYS'

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EYES ONLY" means and applies to: (a) any type of confidential,

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proprietary or trade secret information, document, or thing that is

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"CONFIDENTIAL" as defined above, which also includes non-public ,

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extremely sensitive or proprietary or other highly confidential

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business, financial or strategic information, that the disclosing

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Party in good faith reasonably believes would create a substantial

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risk of competitive or business injury to the disclosing Party if

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disclosed to a competitor or a person who the disclosing Party

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1
As defined in California Civil Code section 3426.1(d), trade
secrets means information, including without limitation, a formula,
pattern, compilation, program, device, method, technique, or
process, that: (1) derives independent economic value, actual or
potential, from not being generally known to the public or to other
persons who can obtain economic value from its disclosure or use;
and (2) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.

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STIPULATED PROTECTIVE ORDER

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reasonably believes to have interests that are aligned with a

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competitor; and (b) any data derived from such information,

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document or thing, including any summaries, compilations, quotes,

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or paraphrases thereof.
1.4.

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As used herein, the terms "document" or

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"documents" mean and include, but are not limited to,

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correspondence, e-mail and other communications, records, exhibits,

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reports, samples, transcripts, video or audio recordings, disks,

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affidavits, briefs, pleadings, summaries, notes, abstracts,

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drawings, company records and reports, answers to interrogatories,

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responses to requests for admissions or document requests, and

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motions, including copies or computer-stored versions of any of the

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foregoing, as well as anything meeting the definition of a

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"writing" as used in California Evidence Code section 250.

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2.

DESIGNATION OF CONFIDENTIAL INFORMATION
2.1.

This Stipulated Protective Order applies to

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all discovery responses in this case, and to any other documents or

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materials containing CONFIDENTIAL or ATTORNEYS' EYES ONLY

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information disclosed in this action that are designated by a Party

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or a third party as such hereunder, as defined above, as well as to

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any documents or materials containing CONFIDENTIAL or ATTORNEYS'

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EYES ONLY information disclosed in this action by way of motion,

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order of the Court, in response to questions in deposition, written

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interrogatories, requests for admission, requests for the

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production of documents and other tangible things, subpoenas, or

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any other discovery undertaken in this action.

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2.2.

Any Party or third party as provided for

herein may designate Confidential Information as CONFIDENTIAL or
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STIPULATED PROTECTIVE ORDER

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ATTORNEYS' EYES ONLY, as defined above, prior to or at the time of

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disclosure by that Party or a third party.

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be made by placing the appropriate designation on every page of

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each document so designated.

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in or by a non-paper medium (e.g., videotape, audiotape, digital

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video disc, compact disc, USB flash drive, computer disk, external

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hard drive or other tangible thing), the appropriate designation

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shall be affixed to the outside of the medium or its container so

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as to clearly give notice of the designation.

Such designation shall

In the case of information disclosed

Such designation is

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deemed to apply both to the document or other material itself and

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to the Confidential Information contained therein or thereon.

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2.3.

Confidential Information shall be used only

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for the purposes of this litigation and may not be used by any

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Party to which or to whom that information is produced or disclosed

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for any other purpose.

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2.4.

The Parties and their attorneys shall use

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reasonable care and diligence to avoid designating any documents or

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materials as CONFIDENTIAL or ATTORNEYS' EYES ONLY that are not

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entitled to such designation.

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burden of proof to support the protections afforded under this

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Stipulated Protective Order.

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2.5.

The designating Party bears the

Each of the Parties to this Stipulated

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Protective Order expressly agrees and covenants that it will not

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disclose or cause the disclosure of any Confidential Information in

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violation of this Stipulated Protective Order, and that it will

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take appropriate steps to secure and safeguard all Confidential

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Information in its possession, along with any copies, summaries,

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excerpts, abstracts, or other information derived in whole or in
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STIPULATED PROTECTIVE ORDER

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part therefrom.
2.6.

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Third parties may avail themselves of the

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protections of this Stipulated Protective Order by: (a) executing a

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nondisclosure agreement in the form attached hereto as Attachment

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“A” and serving a copy thereof on all counsel of record herein, or

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(b) by orally agreeing to be bound by the terms hereof if such oral

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agreement is made on the record during a deposition, which shall

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also be read into the record of such deposition, and by thereafter

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producing documents and/or giving testimony in accordance with this

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Stipulated Protective Order.
3.

DEPOSITIONS
3.1.

With respect to the examination of witnesses

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upon oral deposition, when Confidential Information is supplied to

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the deponent, or when the deponent's testimony contains, reflects,

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or comments on Confidential Information, the deposition reporter

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and/or video operator shall be informed of this Stipulated

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Protective Order by the Party or third party seeking to invoke its

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protection and provided a copy hereof, and will be required to

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agree to be bound by its terms in accordance with Paragraph 2.6.

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If deposition testimony is designated as CONFIDENTIAL or ATTORNEYS'

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EYES ONLY at a deposition, the portion of the testimony so

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designated shall be bound in a separate transcript and/or recorded

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on a separate video device such as videotape, digital video disc or

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similar recording device (collectively, “video”), if the deposition

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is video recorded.

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place on the cover of any such separate transcript or video the

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words "CONTAINS CONFIDENTIAL INFORMATION" or "CONTAINS ATTORNEYS'

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EYES ONLY INFORMATION," as appropriate.

The reporter and/or video operator shall then

Counsel for the Parties

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STIPULATED PROTECTIVE ORDER

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shall then take appropriate steps to prevent such separate

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transcript or video so designated from being disclosed to any

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person, except as provided in this Stipulated Protective Order.

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The Party taking any deposition shall be responsible for ensuring

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that the court reporter and/or video operator are informed of this

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Stipulated Protective Order and have agreed to comply with and be

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bound by its terms.

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3.2.

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If Confidential Information is to be

discussed or disclosed in a deposition, any Party or third party

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claiming such confidentiality may exclude from the room any person

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who is not entitled to receive such Confidential Information

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pursuant to the terms of this Stipulated Protective Order during

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that portion of the deposition in which the Confidential

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Information is actually discussed or disclosed.

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3.3.

Nothing herein shall preclude a Party from

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showing any deponent in this action documents or other materials

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designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY if said deponent

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was the author, sender, or a recipient of such documents or other

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materials or can otherwise be demonstrated to have had prior access

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to or receipt of such documents or materials or the information

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contained therein.

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Stipulated Protective Order, if a document or testimony makes

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reference to the actual or alleged conduct or statements of a

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person who is a potential witness in this action, counsel may

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discuss such conduct or statements with such witness without

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revealing any portion of the document or testimony other than that

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which specifically refers to such conduct or statement, and such

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discussion shall not constitute disclosure within the terms of

Regardless of designation pursuant to this

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STIPULATED PROTECTIVE ORDER

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Paragraph 5 below.
4.

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DEPONENTS AND THIRD PARTY WITNESSES BOUND BY THIS

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STIPULATED PROTECTIVE ORDER

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4.1.

Each deponent or third party witness to whom

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any Party proposes to disclose Confidential Information at a

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deposition, trial, or other proceeding shall first be given a copy

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of this Stipulated Protective Order and informed of its contents;

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shall agree to be bound by the obligations of confidentiality and

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nondisclosure as set forth in this Stipulated Protective Order; and

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shall either (a) execute a nondisclosure agreement in the form

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attached hereto as Attachment “A”, or (b) orally agree, if such

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oral agreement is made on the record during a deposition, to be

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bound by its terms, which shall also be read into the record.
5.

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ACCESS TO CONFIDENTIAL INFORMATION
5.1.

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All Confidential Information shall be

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maintained in confidence and shall not be disclosed, directly or

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indirectly, to any person or entity except as provided in this

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Stipulated Protective Order.
5.2.

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Access to Confidential Information designated

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ATTORNEYS' EYES ONLY shall be limited to the following "Qualified

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Persons":

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5.2.1.

Outside counsel of record for the

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Parties, their employees and staff, and outside vendors engaged in,

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and used solely for, simple reproduction or copying.

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5.2.2.

Consultants and experts requested by

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the Parties or their counsel to furnish expert or litigation

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support services in this litigation, provided that such consultants

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or experts fulfill the conditions in paragraph 5.5 below, and
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STIPULATED PROTECTIVE ORDER

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provided that the name and employment affiliations of the

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consultants or experts are provided to the disclosing Party's

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counsel at least ten (10) days in advance of any disclosure of that

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Party's confidential information, so that counsel for the

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disclosing Party may have an opportunity to object to the Court

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prior to such disclosure, in which case such disclosure shall not

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occur pending resolution by the Parties or the Court.
5.2.3.

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The Court and its authorized

personnel, pursuant to paragraphs 7.1 below.
5.3.

Access to and/or disclosure of information

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designated as CONFIDENTIAL shall be limited to the following

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"Qualified Persons":
5.3.1.

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Those persons or entities considered

"Qualified Persons" under paragraph 5.2.
5.3.2.

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The Parties to this case, and their

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officers, directors, agents and employees whom counsel of record

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believes in good faith have a need for access to such information

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for the preparation and trial of this action.
5.3.3.

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Deponents, so long as the conditions

of Paragraphs 3.1, 3.3 and 4.1 above are met.
5.4.

No Confidential Information received by any

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Party or counsel in this lawsuit may be revealed or disclosed to

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any person or entity not described above.

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5.5.

Each consultant or expert authorized pursuant

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to Paragraph 5.2.2, shall, prior to being given access to

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Confidential Information, acknowledge in writing his or her

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familiarity with the terms of this Stipulated Protective Order and

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execute a nondisclosure agreement in the form specified in
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STIPULATED PROTECTIVE ORDER

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Attachment “A” hereto.

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6.

PARTY'S OWN INFORMATION
6.1.

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Nothing in this Stipulated Protective Order

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shall affect the right of the designating Party to disclose to its

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own officers, directors, employees, agents, consultants or experts,

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or to any other person, Confidential Information designated by it.
7.

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7.1.

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FILING OR LODGING UNDER SEAL, AND OTHER USE
In accordance with Local Rule 79-5.1, if any

papers to be filed with the Court contain information and/or

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documents that have been designated as “Confidential” or

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“Attorneys’ Eyes Only,” the proposed filing shall be accompanied by

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an application to file the papers or the portion thereof containing

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the designated information or documents (if such portion is

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segregable) under seal; and the application shall be directed to

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the judge to whom the papers are directed. For motions, the parties

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shall publicly file a redacted version of the motion and supporting

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papers.

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8.

CHALLENGING A DESIGNATION
8.1.

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In the event that counsel of record for any

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Party at any time believes that designated Confidential Information

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should not be so designated, or that a different designation should

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be employed, and prior to the filing of any motion relating to any

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dispute over such designation, counsel for the Parties shall confer

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in a good faith effort to eliminate the necessity for a hearing or

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to eliminate as many of the disputes as possible.

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responsibility of counsel for the moving party to arrange this

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conference.

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designating Party in writing which notice shall identify each

It shall be the

Such counsel shall so notify counsel for the

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STIPULATED PROTECTIVE ORDER

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issue, shall state briefly with respect to each such issue the

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moving party’s position (and provide any legal authority which the

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moving party believes is dispositive of the dispute as to that

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issue), and specify the terms of the designation or discovery order

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to be sought.

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designating Parties then shall meet and confer in good faith

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concerning such disputed Confidential Information within ten (10)

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days of receipt of the notice.

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those ten (10) days, counsel may then file an appropriate motion

Counsel of record for both the complaining and

If agreement is not reached within

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with the Court challenging the designation.

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however, will need to be made in strict compliance with Local Rules

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37-1 and 37-2 (including the Joint Stipulation requirement).

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such motion, the designating Party bears the burden of proof to

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support the designation.

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shall be subject to and protected by this Stipulated Protective

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Order under the designation assigned by the designating Party until

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the Court has ruled on any such motion.
8.2.

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Any such motion,

Upon

The designated Confidential Information

No Party shall be obliged to challenge the

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propriety of a confidential designation at any specified time, and

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a failure to do so shall not preclude a subsequent attack on the

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propriety of such designation.

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9.

INADVERTENT DISCLOSURE
9.1.

The inadvertent failure to designate

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Confidential Information properly (or at all) in accordance with

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this Stipulated Protective Order prior to or at the time of

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disclosure shall not operate as a waiver of a Party's right to

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thereafter designate such information as confidential within thirty

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(30) days after such disclosure or after actual notice of such
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STIPULATED PROTECTIVE ORDER

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2

disclosure, whichever is later.
9.2.

In the event that Confidential Information is

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designated as confidential after disclosure, but within the thirty

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(30) day period allowed under Paragraph 9.1, all receiving Parties

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shall employ reasonable efforts to ensure that all inadvertently

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disclosed information is subsequently treated as confidential

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pursuant to the terms of this Stipulated Protective Order.

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9.3

If a Party inadvertently produces material

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that it considers to be protected by the attorney-client privilege,

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the work product doctrine or any other privileges or doctrines of

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similar effect, in whole or in part, the Producing Party may

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retrieve such information as follows:

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a.

Within five (5) court days of the date of

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discovery by the Producing Party of the inadvertent production by

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it, the Producing Party must give written notice to all other

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Parties that the Producing Party claims the material, in whole or

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in part, is privileged or protected material; in addition, the

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notice must state the nature of the privilege or protection and the

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basis for asserting it.

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b.

Upon receipt of such notice, any Party who

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has received the subject material shall promptly return all copies

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to the Producing Party asserting inadvertent production.

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event that only part of any material is claimed to be privileged or

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protected, the Producing Party shall furnish to the other Parties

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who have received the material a redacted copy of such material,

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removing only the part(s) thereof claimed to be privileged or

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protected, together with such written notice.
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STIPULATED PROTECTIVE ORDER

In the

c.

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Any Party who has received the subject

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material may contest the claim of privilege or inadvertence by

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filing a motion contesting the claim within ten (10) court days of

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receiving the notice under subparagraph (a) above.

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motion, however, will need to be made in strict compliance with

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Local Rules 37-1 and 37-2 (including the Joint Stipulation

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requirement).

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Party need not return all copies of the subject material to the

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Producing Party asserting inadvertent production; however, the

Any such

During the pendency of such motion, the receiving

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receiving Party may not use or disclose the material for any

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purpose other than prosecution of the motion challenging the

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privilege or protection claim until and unless such time as the

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court has ruled in favor of the motion.
d.

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The provisions of the above subparagraphs

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are without prejudice to any other rights that any Party may have

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with respect to challenging or defending any claim of privilege.

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However, the inadvertent disclosure or production of any such

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privileged material shall not be deemed a waiver of that privilege,

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or to preclude reliance on that privilege.

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10.

MISCELLANEOUS
10.1.

Documents designated CONFIDENTIAL or

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ATTORNEYS' EYES ONLY shall be maintained in the custody of outside

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counsel of record for the Parties except that: (a) any court

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reporter who transcribes testimony given in this action may

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maintain any such designated documents for the purpose of rendering

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his or her normal transcribing services; and (b) partial or

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complete copies of such documents may be retained by consultants

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entitled to see such documents under the terms of this Stipulated
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STIPULATED PROTECTIVE ORDER

1

Protective Order to the extent necessary for their study, analysis,

2

and/or preparation of the case.

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designated CONFIDENTIAL or ATTORNEYS' EYES ONLY shall maintain them

4

in a manner that limits access to those documents to only those

5

persons entitled under this Stipulated Protective Order to examine

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them.
10.2.

7

A person with custody of documents

Unless counsel agree otherwise in writing, at

8

the conclusion of this litigation, whether by settlement or final

9

decision of the Court of last resort, all copies of any documents,

10

other than attorney work product, containing designated

11

Confidential Information produced by a Party or third party shall

12

either be destroyed and written certification of such destruction

13

provided to counsel for the designating Party or third party, or

14

returned to the Party or third party producing such documents or

15

writings.

16

be permitted to retain a file copy of all pretrial, trial, and

17

post-trial materials, depositions and deposition exhibits, and

18

document databases.

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conditions of maintaining information as set forth in Paragraph

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10.1.

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Notwithstanding the foregoing, counsel of record shall

10.3.

Such file copies must be maintained under the

The provisions of this Stipulated Protective

22

Order apply to all proceedings in this action, including, but not

23

limited to, all appeals, arbitrations, mediations, settlement

24

proceedings, and proceedings upon remand.

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10.4.

A designation of confidentiality pursuant to

26

this Stipulated Protective Order shall be effective and shall be

27

respected by the Parties and all persons in any way involved in

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these proceedings or to whose attention Confidential Information
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STIPULATED PROTECTIVE ORDER

1

shall come unless and until otherwise ordered by the Court or

2

stipulated in writing or on the record by all Parties to this

3

action.

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shall survive the conclusion of this action unless and until

5

otherwise ordered by the Court, or until all Parties to this action

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stipulate that designated Confidential Information can be

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disclosed.
10.5.

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9

These obligations of confidentiality and non-disclosure

No Party to this action, by designating

certain information as confidential under this Stipulated

10

Protective Order, or by acquiescing in any other Party's or third

11

party’s designation, shall be deemed to have admitted or agreed

12

that any such designated information is, in fact, a trade secret or

13

otherwise confidential and subject to protection hereunder.

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10.6.

The designation of confidentiality is not

15

admissible before any trier of fact.

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STIPULATED PROTECTIVE ORDER

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10.7.

The Court retains jurisdiction even after

2

termination of this action to enforce this Stipulated Protective

3

Order and to make such deletions from, or amendments,

4

modifications, and additions to, the Stipulated Protective Order as

5

the Court may from time to time deem appropriate.

6

hereto reserve all rights to apply to the Court at any time, before

7

or after termination of this action, for an order modifying this

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Stipulated Protective Order or seeking further protection against

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disclosure or use of claimed Confidential Information.

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The Parties

IT IS SO STIPULATED.
DATED: _____March 5, 2014

LANE POWELL PC

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By: _/s/ Gregory F. Wesner __________
Gregory F. Wesner

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G. Peter Albert, Jr.
Adrian R. Cyhan
ALBERTDHAND LLP

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Attorneys for Plaintiff
Aesthetic Associates, Inc., P.S.

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DATED: ___March 5, 2014

KLEIN, O’NEIL & SINGH, LLP

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By: _/s/ Glen L Nuttall__________
Glen L. Nuttall
Attorney for Defendants
Eyecare Specialists Medical Group,
Inc., dba Atlantis Eyecare; and Ehsan
Sadri, M.D.

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IT IS SO ORDERED.

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DATED: March 25, 2014

_______________________________
HONORABLE ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE

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STIPULATED PROTECTIVE ORDER

1

ATTACHMENT "A"

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NONDISCLOSURE AGREEMENT
I, __________________, do solemnly swear that I am

3
4

familiar with the terms of the Stipulated Protective Order (the

5

"Order") entered in Aesthetic Associates, Inc., P.S. v. Atlantis

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Eyecare, Inc., et al., U.S. Central District Court, Case No. SACV

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13-cv-01693-DOC (RNBx) (the "Action"), and hereby agree to comply

8

with and be bound by all of the terms and conditions of said Order,

9

unless and until modified by further order of the Court in the

10

Action.

I will not disclose to any individuals, other than those

11

specifically authorized by the Court or in the Order, any documents

12

or information designated as Confidential Information pursuant to

13

the Order which are disclosed to me, nor will I copy, use or

14

disclose any documents or information designated as CONFIDENTIAL or

15

ATTORNEYS' EYES ONLY under the Order except for the purposes of the

16

Action and/or as authorized by the Order.

17

jurisdiction of the Court in the Action for purposes of enforcing

18

this Order.

I hereby consent to the

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DATED: ______________

Signature: __________________________

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Name:

___________________________
(print)

Address:

___________________________

22
23
24

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25

Telephone
Number:
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26
27
28
17
STIPULATED PROTECTIVE ORDER