Adriana Miller v. Bayer Healthcare Pharmaceuticals Inc., et al

Filing 38

PROTECTIVE AND CONFIDENTIALITY ORDER by Magistrate Judge Jay C. Gandhi re {Proposed] Protective and Confidentiality Order 36 . (kh)

1 Alicia J. Donahue, SBN 117412
Ina D. Chang, SBN 240784
2
SHOOK, HARDY & BACON L.L.P.
3 One Montgomery, Suite 2700
San Francisco, California 94104
4
Telephone: [phone]
5 Facsimile: 415.391.0281
[e-mail]
6 [e-mail]
7 Attorneys for Defendant
8 Bayer Healthcare Pharmaceuticals Inc.
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

(WESTERN DIVISION – LOS ANGELES)

12
13 ADRIANA MILLER,
Plaintiff,

14
15

v.

CASE NO. 8:15-cv-0453-AG-JCGx
PROTECTIVE AND
CONFIDENTIALITY ORDER

16

BAYER HEALTHCARE
17 PHARMACEUTICALS INC.,
Defendant.

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19
20
21
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PROTECTIVE AND CONFIDENTIALITY ORDER
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The Court has read and reviewed Defendant’s Motion for Protective and

2 Confidentiality Order. After consideration of the briefs and arguments of counsel, the
3 Court hereby finds that a Protective and Confidentiality Order is warranted. As such,
4 the Court hereby makes the following Protective and Confidentiality Order the Order
5 of this Court applicable to the parties and their counsel:
6

1.

Discovery Materials.

This Stipulation and Protective Order

7 applies to all products of discovery and all information derived there from, including,
8 but not limited to, all documents and deposition testimony and any copies, excerpts or
9 summaries thereof (“Discovery Materials”), obtained by any party pursuant to the
10 requirements of any court order, requests for production of documents, requests for
11 admissions, interrogatories or subpoenas.
12

2.

Identification of Confidential Discovery Materials.

All

13 Discovery Materials that contain trade secrets and other confidential research,
14 development, or commercial information, or Plaintiffs’ personal and medical
15 information may in good faith be stamped “Confidential” by the producing party and
16 shall be subject to the provisions of this Stipulation and Protective Order. Such
17 stamping or marking will take place prior to production by the producing person, or
18 subsequent to selection by the receiving party for copying but prior to the actual
19 copying. The stamp shall be affixed in such manner as not to obliterate or obscure
20 any written matter.
21

3.

Subject to the provisions of paragraph 5 of this Protective Order,

22 disclosure of any Confidential Discovery Materials shall be limited to:
23

a.

the Court and its staff;

24

b.

“counsel,” including inside Counsel and Outside Attorneys and

25

their office attorneys, legal assistants, and clerical staffs;

26

c.

27

persons shown on the face of the document to have authored or
received it;

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d.

court reporters and videographers retained to transcribe testimony;

2

e.

the parties;

3

f.

retained experts or vendors who are expressly retained by or on

4

behalf of any party to provide assistance or testimony with respect

5

to the underlying litigation;

6

g.

any witness during deposition in this Litigation; and

7

h.

Plaintiffs’ healthcare providers.

8

4.

Challenging Confidential Designation. Counsel for a party to whom

9 Confidential Discovery Materials are being produced may challenge the
10 “Confidential” designation made by the producing party by first requesting a “meet
11 and confer” with the producing party in an attempt to amicably resolve the challenge.
12 In the event agreement cannot be reached, the proponent of confidentiality may apply
13 by motion for a ruling as to whether the designated discovery material may, in
14 accordance with this Order, be treated as confidential. This motion shall be made
15 within 30 days from the date on which the parties, after good faith attempt, agree that
16 they cannot resolve the dispute or such other time period agreed to by the parties. The
17 party seeking to maintain the materials as “Confidential” shall have the burden of
18 proof on such motion to establish the propriety of its confidential designation. The
19 Discovery Materials designated “Confidential” shall continue to be treated as such and
20 subject to the provisions of this Protective and Confidentiality Order pending
21 determination by the Court of the merits of any such motion. In the event that the
22 Court enters an order that particular Discovery Materials are not entitled to the
23 designation “Confidential” the Discovery Materials shall nevertheless continue to be
24 treated as “Confidential” and subject to the terms of this Stipulation and Protective
25 Order for 30 days following the service of Notice of Entry of such order to enable the
26 producing party to seek review and a stay of such order.
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5.

Disclosure of Confidential Discovery Material.

2

a.

The disclosure of the Discovery Materials designated as “Confidential”

3 by counsel for a party to the Litigation to legal assistants, paralegals and clerical staff
4 employed by the disclosing counsel’s office and the Court is allowed under the terms
5 of this Stipulation and Protective Order without limitation and without the need to
6 execute an Affidavit. Such disclosure shall not constitute a violation or a waiver of
7 the protections afforded by the Protective and Confidentiality Order. Said assistants,
8 paralegals and clerical staff, as employed agents of the disclosing counsel, are bound
9 by this Order to the same extent as the parties and attorneys are bound.
10

b.

Disclosure by counsel for a party in the Litigation to any of the other

11 individuals/entities identified in sections 3.c-g of Discovery Materials designated as
12 “Confidential” by another party shall not constitute a violation or waiver of the
13 protections afforded by this Protective and Confidentiality Order to the extent that
14 such disclosure is necessary to assist in the prosecution or defense of the Litigation
15 and so long as the individual/entity (or, in the event that an entity is not a natural
16 person, the entity’s employees) to whom disclosure is made has executed an Affidavit
17 in the form attached hereto as Exhibit A. Copies of each executed Affidavit shall be
18 maintained by the disclosing counsel.
19

c.

Disclosure by counsel to a plaintiffs’ healthcare provider and/or that

20 healthcare provider’s counsel, outside of a deposition setting, of Discovery Materials
21 designated as “Confidential” by another party shall not constitute a violation or waiver
22 of the protections afforded by this Protective and Confidentiality Order to the extent
23 that such disclosure is necessary to assist in the prosecution or defense of the
24 Litigation and so long as the individual/entity (or, in the event that an entity is not a
25 natural person, the entity’s employees) to whom disclosure is made has executed an
26 Affidavit in the form attached hereto as Exhibit A. Copies of each executed Affidavit
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1 shall be maintained by the disclosing counsel.

Such disclosure, outside of a

2 deposition setting, shall be limited to the following categories of documents:
3

i.

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healthcare provider to whom the disclosure is being made.

5

ii.

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purposes of sales call visits with the healthcare provider to whom

7

the disclosure is being made.

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iii.

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sales call visits with healthcare providers found within the

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custodial file of a sales representative who called on the healthcare

11

provider to whom the disclosure is being made.

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iv.

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seminars (i.e. continuing medical education lectures and other

14

similar lectures/meetings).

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v.

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sent to healthcare providers in the United States.

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vi.

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d.

All documents (including call notes) referencing the

All promotional materials identified as being used for the

All approved promotional materials used for the purposes of

All documents and materials presented during educational

All “Dear Doctor” and “Dear Healthcare Provider” letters

All documents publicly available.

Any party seeking to use Discovery Materials designated as

19

“Confidential” by another party fall outside of the categories set forth in 5(c)(i-

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vi) during the deposition of plaintiff’s healthcare provider must give the other

21

party notice of its intent and the documents it plans to use seven days prior to

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the deposition.

23

e.

During a deposition, disclosure by counsel to a witness and/or that

24

witness’s counsel, if any, of Discovery Materials designated as “Confidential”

25

by another party shall be permitted so long as the witness to whom the

26

disclosure is made has executed the Affidavit or orally agreed on the record to

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the terms of the Affidavit attached hereto as Exhibit A.

Under no

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circumstances shall copies of Discovery Materials designated as “Confidential”

2

used at a deposition be left in the possession of the witness or his/her counsel.

3

Further, copies of Discovery Materials designated “Confidential” shall not be

4

attached to or included with any original or copy of the transcript of a

5

deposition sent to the witness or his/her counsel.

6

f.

In addition, within thirty (30) days after the completion of a

7

deposition session, counsel may designate the entirety or any specified portion

8

of the transcript or exhibits thereto as “Confidential” by letter to the opposing

9

party. Until such thirty (30) day period expires, the entirety of such transcripts

10

and all exhibits thereto shall be treated as Confidential and subject to this Order.

11

After such thirty (30) day period expires, such transcripts, exhibits or portions

12

designated as “Confidential” shall be treated as such under this Order. If no

13

such designation is made within thirty (30) days, such transcripts or exhibits

14

shall not be treated as “Confidential” under this Stipulation and Protective

15

Order.

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g.

Any materials provided to an insurer or its counsel shall not be

17

used for any purpose other than evaluation of the claims asserted in this

18

litigation and shall not be used outside the claims asserted in this litigation.

19

6.

Except as provided for herein, nothing in this Protective and

20 Confidentiality Order shall prevent or restrict counsel for any party in any way from
21 inspecting, reviewing, using or disclosing any Discovery Materials produced or
22 provided by that party, including Discovery Materials designated as “Confidential.”
23 The parties reserve all their respective rights concerning whether or not there has been
24 a waiver of confidentiality in the event that the producing party shares such Discovery
25 Materials designated as Confidential with third parties other than as provided for
26 elsewhere in this Protective and Confidentiality Order.
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7.

Disclosure of Discovery Materials designated as “Confidential”

2 other than in accordance with the terms of this Protective and Confidentiality Order
3 may subject the disclosing person to such sanctions and remedies as the Court may
4 deem appropriate.
5

8.

All persons receiving or given access to Discovery Materials

6 designated as “Confidential” in accordance with the terms of this Protective and
7 Confidentiality Order consent to the continuing jurisdiction of this Court for the
8 purposes of enforcing this Protective and Confidentiality Order and remedying any
9 violations thereof.

All parties and their respective counsel, paralegals and the

10 employees and assistants of all counsel, and experts receiving Discovery Materials
11 designated as “Confidential” shall take steps reasonably necessary to prevent the
12 disclosure of Confidential Discovery Materials other than in accordance with the
13 terms of this Stipulation and Protective Order.
14

9.

This Order does not automatically seal court records in this case or

15 apply to the disclosure of Confidential Discovery Material at trial. It is only intended
16 to facilitate the prompt production of discovery materials. A party that seeks to file
17 with this Court any material that contains, describes, identifies, discloses, discusses,
18 refers to or attaches any Discovery Materials designated as “Confidential” shall file
19 such Discovery Materials under seal in compliance with applicable law. Documents
20 filed under seal with the Clerk of the Court shall be kept under seal until further order
21 of the Court, so long as the Court permits, in a sealed envelope with information
22 required by the Court as well as the following statement endorsed on it:
23

Confidential

24

This envelope contains documents that are subject to a Protective Order
entered by the Court in this action governing the use of Confidential
Discovery Material. All such material so filed shall be maintained by the
Clerk of the Court separate from the public records in this action, and
shall be released only upon further Order of the Court.

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10.

The producing party of any Confidential Discovery Materials

2 attached to or referenced in a document filed with the Court under seal may assent to
3 the unsealing of the document at any juncture without waiving its assertion of
4 confidentiality as to any other Discovery Materials.
5

11.

Nothing shall prevent disclosure beyond that required under this

6 Protective and Confidentiality Order if the producing party consents in writing to such
7 disclosure, or if the Court, after notice to all affected parties, orders such disclosure
8 and that Order is not subject to an appellate stay within 30 days after Notice of Entry
9 of the Order is served on the producing party.
10

12.

Any party who inadvertently fails to identify documents, including

11 deposition transcripts, as “Confidential” shall, promptly upon discovery of its
12 oversight, provide written notice of the error and substitute appropriately designated
13 documents produced in the same format as the incorrectly designated document was
14 initially produced. Any party receiving such inadvertently unmarked documents shall,
15 following receipt of notice of the error, treat such documents as Confidential as if they
16 had initially been designated as such, make good faith and reasonable efforts to
17 retrieve documents distributed to persons not entitled to receive documents with the
18 corrected “Confidential - Subject to Protective Order” designation and, upon receipt of
19 the substitute documents, promptly return or destroy the improperly designated
20 document(s) and/or the electronic media on which such document(s) reside.
21

13.

Procedure for Use in Court. Discovery Material received by the

22 Court or entered into evidence in non-trial proceedings shall not lose its status as
23 “Confidential” Discovery Materials as a result. The use of any Discovery Material
24 designated as “Confidential” at trial will be addressed in the Court’s Pretrial Order.
25

14.

This Protective and Confidentiality Order shall be binding

26 throughout and after final adjudication of this action, including but not limited to any
27 final adjudication of any appeals and petitions for extraordinary writs.
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15.

Unless otherwise ordered or agreed in writing by the producing

2 party, and if requested by the producing party, each receiving party must return all
3 Confidential Discovery Material to the producing party or provide a certification to
4 the producing party that all Confidential Discovery Material in their possession has
5 been destroyed after the final termination of this action including copies of materials
6 provided to third parties under the provisions of this Order. Notwithstanding this
7 provision, Counsel are entitled to retain an archival copy of all pleadings, motion
8 papers, transcripts, legal memoranda, correspondence or attorney work product, even
9 if such materials contain Confidential Discovery Material. Any such archival copies
10 that contain or constitute Confidential Discovery Material remain subject to this
11 agreement as set forth in Paragraph 16 above.
12

16.

Within thirty (30) days after final adjudication of this action,

13 including but not limited to, any final adjudication of any appeals and petitions for
14 extraordinary writs, Plaintiffs or Defendant may request that the Clerk return under
15 seal to counsel for the producing party all Discovery Materials designated
16 “Confidential” including, without limitation, all transcripts or other things that were
17 subject to the provisions of this Protective and Confidentiality Order.
18

17.

Any party may apply to the Court for a modification of the Protective and

19 Confidentiality Order, and nothing in this Protective and Confidentiality Order shall
20 be construed to prevent a party from seeking such further provisions enhancing or
21 limiting confidentiality as may be appropriate.
22

18.

No action taken in accordance with the Protective and Confidentiality

23 Order shall be construed as a waiver of any claim or defense in the Litigation or of
24 any position as to discoverability or admissibility of evidence.
25

19.

If a receiving party or its counsel or expert is served with a subpoena or

26 other process by any court, administrative or legislative body, or any other person or
27 organization that calls for production of any Confidential Discovery Materials
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1 produced by another party, the party to whom the subpoena or other process is
2 directed shall not, to the extent permitted by applicable law, provide or otherwise
3 disclose such documents or information until 10 business days after notifying counsel
4 for the producing party in writing of all of the following: (1) the information and
5 documentation requested for production in the subpoena; (2) the date on which
6 compliance with the subpoena is requested; (3) the location at which compliance with
7 the subpoena is requested; (4) the identity of the party serving the subpoena; and (5)
8 the case name, jurisdiction and index, docket, complaint, charge, civil action or other
9 identification number or other designation identifying the litigation, administrative
10 proceeding or other proceeding in which the subpoena has been issued.
11

20.

Nothing in this Stipulation and Protective Order shall be construed to

12 prevent this Court from disclosing any facts relied upon by it in making or rendering
13 any finding, ruling, order, judgment or decree of whatever description.
14

21.

Each party shall bear its own costs for complying with this Protective and

15 Confidentiality Order.
16

22.

Discovery Materials designated as “Confidential” produced by any

17 defendant in this case may be disclosed to the named plaintiff(s) in other Mirena®
18 lawsuits and their counsel who have executed Exhibit B acknowledging that: (a) they
19 have filed and served the defendant who produced the Discovery Materials to which
20 they would like access; (b) their lawsuit alleges use of the Mirena® and subsequent
21 injury of idiopathic intracranial hypertension; (c) a protective order has been entered
22 in the lawsuit described in the preceding subclause (b) has an identical protective
23 order to this one entered; (d) all counsel for plaintiff who receive the documents agree
24 to be governed by the terms of this Order. Upon execution, Exhibit B shall be
25 provided to counsel for the Defendant(s).
26

Entered this 5th day of February, 2016.

27

Jay C. Gandhi, U.S. Magistrate Judge

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1

UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA

3

(WESTERN DIVISION – LOS ANGELES)

4
5
6
7

CASE NO. 8:15-cv-0453-AG-JCGx

ADRIANA MILLER,

EXHIBIT A

Plaintiff,
v.

8 BAYER HEALTHCARE
PHARMACEUTICALS INC.,
9
Defendant.
10
11
12
13

AGREEMENT TO MAINTAIN CONFIDENTIALITY
STATE OF

)

14 COUNTY OF

)

15
16

__________________________________, being duly sworn, deposes and says:

17

1.

I am over the age of 18 years and make this Affidavit based upon my

18 personal knowledge, and I am competent to testify to the matters stated herein.
19

2.

I am aware that a Stipulation and Protective Order has been entered in the

20 above-captioned case. A copy of that Stipulation and Protective Order has been
21 shown to me, and I have read and understand its contents.
22

3.

By signing this Affidavit, I promise that I will not use the materials and

23 contents of the materials designated “Confidential” pursuant to the above-described
24 Stipulation and Protective Order for any purpose other than this litigation.
25

4.

By signing this Affidavit, I also promise that I will not communicate,

26 disclose, discuss, identify, or otherwise use materials or the contents of materials
27 designated “Confidential” pursuant to the above-described Stipulation and Protective
28 Order with, to, or for any person or entity other than the Court, a party to the above11
PROTECTIVE AND CONFIDENTIALITY ORDER
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1 described Litigation, counsel for a party to the Litigation, including other counsel,
2 paralegals, and staff employed in his or her office, persons pen fitted by the above3 described Stipulation and Protective Order to attend depositions taken in the
4 Litigation, and persons or entities assisting such counsel who have executed an
5 affidavit in the same form as this Affidavit.
6

5.

By signing this Affidavit, I also promise that I will not copy, transcribe,

7 or otherwise reproduce, or cause to be copied, transcribed, or otherwise reproduced,
8 by any means whatsoever, any materials or the contents of any materials designated
9 “Confidential” pursuant to the above-described Stipulation and Protective Order
10 except to the extent to which I am directed to do so by counsel for a party to the
11 Litigation, in which case all such copies, transcriptions, or reproductions shall be
12 made solely for my own use in connection with my work or assistance in the above
13 matter. I further promise at the conclusion of the Litigation to deliver upon request all
14 materials designated “Confidential” (originals and copies) to the counsel who
15 originally directed that said materials be provided to me.
16

6.

I understand that, by signing this Affidavit, I am agreeing to subject

17 myself to the jurisdiction of this Court.
18

7.

I understand that any use or distribution of the materials or contents of

19 the materials designated “Confidential” pursuant to the above-described Stipulation
20 and Protective Order in any manner contrary to the provisions of the Stipulation and
21 Protective Order will subject me to remedies as this Court may deem appropriate.
22

_______________________________

23

Signature of Affiant

24 Subscribed to and sworn before me,
this _____ day of ___________, 201_.
25
26
27

Notary Public

[Seal]

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1

UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA

3

(WESTERN DIVISION – LOS ANGELES)

4
5

EXHIBIT B

Plaintiff,

6
7

CASE NO. 8:15-cv-0453-AG-JCGx

ADRIANA MILLER,

v.

8 BAYER HEALTHCARE
PHARMACEUTICALS INC.,
9
Defendant.
10
11
12
AGREEMENT TO MAINTAIN CONFIDENTIALITY

13
14

STATE OF

)

15 COUNTY OF

)

16
17

__________________________________, being duly sworn, deposes and says:

18

1.

I am an attorney and make this Affidavit based upon my personal

19 knowledge, and I am competent to testify to the matters stated herein.
20

2.

I am aware that a Stipulation and Protective Order has been entered in

21 this case. A copy of that Stipulation and Protective Order has been shown to me, and
22 I have read and understand its contents.
23

3.

By signing this Affidavit, I promise that I will not use the materials and

24 contents of the materials designated “Confidential” pursuant to the above-described
25 Stipulation and Protective Order for any purpose other than this litigation.
26

4.

By signing this Affidavit, I agree to be bound by all terms of the above-

27 described Stipulation and Protective Order.
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5.

I understand that, by signing this Affidavit, I am agreeing to subject

2 myself to the jurisdiction of this Court.
3

6.

I understand that any use or distribution of the materials or contents of

4 the materials designated “Confidential” pursuant to the above-described Stipulation
5 and Protective Order in any manner contrary to the provisions of the Stipulation and
6 Protective Order will subject me to remedies as this Court may deem appropriate.
7

7.

By signing this affidavit, I am verifying under oath that I am a named

8 plaintiff or counsel for a named plaintiff in a Mirena lawsuit that has previously been
9 filed and served (“the Lawsuit”) where (a) all the claimed injury(ies) in the Lawsuit
10 allegedly result from the use of Mirena® and subsequent injury of idiopathic
11 intracranial hypertension, and (b) a protective order has been entered in the Lawsuit
12 that is identical to the present order.
13

8.

By signing this affidavit, I agree to only access and review Discovery

14 Materials produced by parties that I have sued and served in the Lawsuit.
15

Dated:

___________, 201_

16

_______________________________

17

Signature of Affiant

18 Subscribed to and sworn before me,
this _____ day of ___________, 201_.
19
20
21 Notary Public

[Seal]

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