HsingChing Hsu v. Puma Biotechnology, Inc. et al

Filing 86

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 83 . (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HSINGCHING HSU, Individually and
on Behalf of All Others Similarly
Situated,
Plaintiff,

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v.

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Case No. 8:15-cv-00865 AG (JCGx)
Assigned to: Hon. Andrew J. Guilford
Ctrm: 10D
STIPULATION AND
PROTECTIVE ORDER

PUMA BIOTECHNOLOGY, INC., ALAN
H. AUERBACH, and CHARLES R.
EYLER,
Defendants.

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Pursuant to Federal Rule of Civil Procedure 26(c), the parties to this action respectfully

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request that the Court issue this Protective Order to protect the confidentiality of nonpublic and

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competitively-sensitive information that may need to be disclosed in connection with discovery

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in this case, and to guard against the waiver of attorney-client privilege and work product

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protection pursuant to Federal Rule of Evidence 502(d). The parties by and through their

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counsel hereby stipulate to the following terms governing the pre-trial phase of this action.

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1.

PURPOSE AND LIMITS OF THIS ORDER

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Discovery in this action is likely to involve confidential, proprietary, or private

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information requiring special protection from public disclosure and from use for any purpose

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other than this litigation. Thus, the Court enters this Protective Order. This Order does not

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confer blanket protections on all disclosures or responses to discovery, and the protection it gives

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from public disclosure and use extends only to the specific material entitled to confidential

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treatment under the applicable legal principles. This Order does not automatically authorize the

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filing under seal of material designated under this Order. Instead, the parties must comply with

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L.R. 79-5.1 if they seek to file anything under seal. This Order does not govern the use at trial of

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material designated under this Order.

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2.

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DESIGNATING PROTECTED MATERIAL
2.1

Confidential Information. A party or non-party may designate as

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“CONFIDENTIAL” any confidential, proprietary and/or trade-secret technical, scientific,

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business, or financial information that is not generally known and that the producing party would

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normally maintain in confidence and not reveal to a third party or would cause third parties to

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maintain in confidence. Any information that is derived from CONFIDENTIAL information

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also constitutes CONFIDENTIAL information to the extent the derived information embodies,

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contains, or discloses any CONFIDENTIAL information.

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2.2

Highly Confidential-Attorneys’ Eyes Only Information. A party or non-party

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may designate as “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” information the

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disclosure of which the producing party reasonably and in good faith believes could seriously

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harm the competitive position of the producing party, such as, by way of illustrative example,
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current business plans, highly sensitive financial information, confidential regulatory

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submissions, or highly proprietary technical know-how or trade secrets. Any information that is

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derived from HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY information also

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constitutes HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY information to the extent

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the derived information embodies, contains, or discloses any HIGHLY CONFIDENTIAL-

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ATTORNEYS’ EYES ONLY information.

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2.3

Over-Designation Prohibited. Any party or non-party who designates

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information or items for protection under this Order as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY” (a “designator”) must only designate specific

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material that qualifies under the appropriate standards. To the extent practicable, only those

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parts of documents, items, or oral or written communications that require protection shall be

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designated. Designations with a higher confidentiality level when a lower level would suffice

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are prohibited. Mass, indiscriminate, or routinized designations are prohibited. Unjustified

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designations expose the designator to sanctions, including the Court’s striking all confidentiality

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designations made by that designator. Designation under this Order is allowed only if the

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designation is necessary to protect material that, if disclosed to persons not authorized to view it,

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would cause competitive or other recognized harm. Material may not be designated if it has

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been made public, or if designation is otherwise unnecessary to protect a secrecy interest. If a

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designator learns that information or items that it designated for protection do not qualify for

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protection at all or do not qualify for the level of protection initially asserted, that designator

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must promptly notify all parties that it is withdrawing the mistaken designation.

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2.4

Manner and Timing of Designations. Designation under this Order requires the

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designator to affix the applicable legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY”) to each page that contains protected material. For testimony given

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in deposition or other proceeding, the designator shall specify all protected testimony for which

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protection is being asserted. It may make that designation during the deposition or proceeding,

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or may invoke, on the record or by written notice to all parties on or before the next business

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day, a right to have up to thirty days from the deposition or proceeding to make its designation.
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2.4.1

Protected Health Information. Nothing in this Protective Order

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shall be read to require the production of confidential patient or medical

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information as defined by the Health Insurance Portability and Accountability

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Act. A Disclosing Party shall, as applicable, redact “protected health

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information” (“PHI”) as defined in the Health Insurance Portability and

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Accountability Act (“HIPAA”) provisions 45 C.F.R §§ 160.103 and 164.501, or,

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as defined in 21 C.F.R. § 20.63(f) or (e), which includes but is not limited to

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health information, including demographic information, relating to either (a) the

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past, present, or future physical or mental condition of an individual, (b) the

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provision of care to an individual, or (c) the payment for care provided to any

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individual, which identifies the individual or which reasonably could be expected

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to identify the individual, and so note any such redactions on the responsible

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document or on an appropriate redaction log. To the extent that redactions of

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PHI would create an undue burden or a party determines that production of PHI

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is relevant and necessary, the parties shall meet and confer on a proposed

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amendment to this Protective Order. Any such amendment shall be submitted to

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the Court as a stipulated amendment or, if the parties are unable to reach an

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agreement, any party may move the Court to amend the Protective Order.

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2.4.2

A party or non-party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting party has identified which material it would like copied and produced.

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During the inspection and before the designation, all material shall be treated as

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting

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party has identified the documents it wants copied and produced, the producing

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party must designate the documents, or portions thereof, that qualify for

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protection under this Order.

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2.4.3

Parties shall give advance notice if they expect a deposition or

other proceeding to include designated material so that the other parties can
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ensure that only authorized individuals are present at those proceedings when

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such material is disclosed or used. The use of a document as an exhibit at a

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deposition shall not in any way affect its designation. Transcripts containing

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designated material shall have a legend on the title page noting the presence of

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designated material, and the title page shall be followed by a list of all pages

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(including line numbers as appropriate) that have been designated, and the level

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of protection being asserted. The designator shall inform the court reporter of

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these requirements. Any transcript that is prepared before the expiration of the

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thirty-day period for designation shall be treated during that period as if it had

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been designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY

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unless otherwise agreed. After the expiration of the thirty-day period, the

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transcript shall be treated only as actually designated.

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2.5

Inadvertent Failures to Designate. An inadvertent failure to designate does not,

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standing alone, waive protection under this Order. If at any time prior to the trial of this action, a

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producing person or party realizes that discovery material was inadvertently produced without

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designation, the person or party may designate by apprising all parties in writing, and any

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designated portions of the discovery material will thereafter be treated as CONFIDENTIAL or

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY under the terms of this Order.

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3.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1 through

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L.R. 37-4.

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4.

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ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only for this

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litigation. Designated material may be disclosed only to the categories of persons and under the

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conditions described in this Order. Designated material, including PHI, shall be used solely for

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the purpose of this action, and not in any other litigation, and not for any business or other

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purpose whatsoever. Nothing in this Order shall be interpreted to prohibit or prevent the

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producing party from using or discussing its own CONFIDENTIAL OR HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY material in any way it sees fit or to so use or

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discuss that material for any reason. Any such use or discussion of designated material shall not

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be deemed a waiver of the terms of the Order. If a party or any of its representatives, including

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counsel, inadvertently discloses any designated material to persons who are not authorized to use

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or possess such material or has actual knowledge that designated material is being used or

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possessed by a person not authorized to use or possess that material, regardless of how the

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material was disclosed or obtained by such person, the party shall provide immediate written

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notice of the unauthorized use or possession to the designating party or non-party whose material

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is being used or possessed.

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4.2

Disclosure of CONFIDENTIAL Material Without Further Approval. Unless

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otherwise ordered by the Court or permitted in writing by the designator, a receiving party may

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disclose any material designated CONFIDENTIAL only to:

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4.2.1

The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom disclosure is reasonably

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necessary;

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4.2.2

The officers, directors, and employees of the receiving party to

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whom disclosure is reasonably necessary, and who have signed the Agreement to

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Be Bound (Exhibit A);

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4.2.3

Experts retained by the receiving party’s outside counsel of record

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to whom disclosure is reasonably necessary, and who have signed the Agreement

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to Be Bound (Exhibit A);

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4.2.4

The Court and its personnel;

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4.2.5

Outside court reporters and their staff, professional jury or trial

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consultants, mock jurors, and professional vendors to whom disclosure is

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reasonably necessary, and who have signed the Agreement to Be Bound (Exhibit

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A);

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4.2.6

During their depositions, witnesses, and attorneys for witnesses,

in the action to whom disclosure is reasonably necessary provided: (1) the
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deposing party requests that the witness sign the “Agreement to Be Bound”

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(attached as Exhibit A hereto); and (2) they will not be permitted to keep any

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CONFIDENTIAL information unless they sign the “Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the designator or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal

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designated material may be separately bound by the court report and may not be

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disclosed to anyone except as permitted under this Protective Order;

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4.2.7

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The author or recipient of a document containing the material, or

a custodian or other person who otherwise possessed or knew the information;

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and

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4.2.8

Any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY

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Material Without Further Approval. Unless permitted in writing by the designator, a

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receiving party may disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY

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EYES ONLY without further approval only to:

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4.3.1

The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom it is reasonably necessary to

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disclose the information;

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4.3.2

The Court and its personnel;

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4.3.3

During their depositions, witnesses, and attorneys for witnesses,

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in the action to whom disclosure is reasonably necessary provided: (1) the

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deposing party requests that the witness sign the “Agreement to Be Bound”

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(attached as Exhibit A hereto); and (2) they will not be permitted to keep any

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HIGHLY-CONFIDENTIAL information, unless otherwise agreed by the

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designator or ordered by the court. Pages of transcribed deposition testimony or

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exhibits to depositions that reveal designated material may be separately bound
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by the court report and may not be disclosed to anyone except as permitted under

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this Protective Order. Nothing herein shall waive the right of any party or non-

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party to move for a protective order prohibiting the disclosure of specified

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HIGHLY CONFIDENTIAL information to a witness;

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4.3.4

Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A); and

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4.3.5

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The author or recipient of a document containing the material, a

custodian or other person who otherwise possessed or knew the information, or,

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during subpoeaned testimony, any current or former officer or employee of Puma

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Biotechnology, Inc.

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4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or Material to In-House Counsel or

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Experts. Unless agreed to in writing by the designator:

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4.4.1

A party seeking to disclose to in-house counsel any material

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designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first

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make a written request to the designator providing the full name of the in-house

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counsel, the city and state of such counsel’s residence, and such counsel’s

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current and reasonably foreseeable future primary job duties and responsibilities

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in sufficient detail to determine present or potential involvement in any

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competitive decision-making.

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4.4.2

A party seeking to disclose to an expert retained by outside

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counsel of record any information or item that has been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written

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request to the designator that (1) identifies the general categories of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY information that the receiving

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party seeks permission to disclose to the expert, (2) identifies the expert’s current

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employer(s), if any employer is a life sciences or pharmaceutical company, and
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(3) identifies any compensation or funding the expert has received from any life

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sciences or pharmaceutical company in the past five years.

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4.4.3

A party that makes a request and provides the information

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specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the

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identified in-house counsel or expert unless, within seven days of delivering the

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request, the party receives a written objection from the designator providing

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detailed grounds for the objection.

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4.5

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through L.R. 37-4.

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5.

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All challenges to objections from the designator shall proceed under L.R. 37-1

AMENDMENT OF THE PROTECTIVE ORDER
5.1

Nothing in this Protective Order abridges the right of any person to seek its

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modification by the Court in the future, or to object to or seek further limitations on discovery

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that it believes to be otherwise improper or seek further or different relief from the Court.

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6.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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6.1

Subpoenas and Court Orders. This Order in no way excuses noncompliance

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with a lawful subpoena or court order. The purpose of the duties described in this section is to

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alert the interested parties to the existence of this Order and to give the designator an opportunity

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to protect its confidentiality interests in the court where the subpoena or order issued.

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6.2

Notification Requirement. If a party is served with a subpoena or a court order

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issued in other litigation that compels disclosure of any information or items designated in this

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action as CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY, that

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party must:

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6.2.1

Promptly notify the designator in writing. Such notification shall

include a copy of the subpoena or court order;
6.2.2

Promptly notify in writing the party who caused the subpoena or

order to issue in the other litigation that some or all of the material covered by

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the subpoena or order is subject to this Order. Such notification shall include a

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copy of this Order; and

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6.2.3

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Cooperate with all reasonable procedures sought by the designator

whose material may be affected.

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6.3

Wait For Resolution of Protective Order. If the designator timely seeks a

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protective order, the party served with the subpoena or court order shall not produce any

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information designated in this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY before a determination by the court where the subpoena or order

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issued, unless the party has obtained the designator’s permission. The designator shall bear the

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burden and expense of seeking protection of its confidential material in that court.

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7.

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UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed designated

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material to any person or in any circumstance not authorized under this Order, it must

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immediately (1) notify in writing the designator of the unauthorized disclosures, (2) use its best

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efforts to retrieve all unauthorized copies of the designated material, (3) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order, and (4) use

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reasonable efforts to have such person or persons execute the Agreement to Be Bound

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(Exhibit A).

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8.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced material is

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subject to a claim of privilege or other protection, the obligations of the receiving parties are

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those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to

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modify whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review pursuant to Federal Rule of Evidence 502(d) and (e).

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9.

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FILING UNDER SEAL
Without written permission from the designator or a Court order, a party may not file in

the public record in this action any designated material. A party seeking to file under seal any
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designated material must comply with L.R. 79-5.1. Filings may be made under seal only

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pursuant to a court order authorizing the sealing of the specific material at issue. The fact that a

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document has been designated under this Order is insufficient to justify filing under seal.

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Instead, parties must explain the basis for confidentiality of each document sought to be filed

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under seal. Because a party other than the designator will often be seeking to file designated

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material, cooperation between the parties in preparing, and in reducing the number and extent of,

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requests for under seal filing is essential. If a receiving party’s request to file designated

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material under seal pursuant to L.R. 79-5.1 is denied by the Court, then the receiving party may

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file the material in the public record unless (1) the designator seeks reconsideration within four

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days of the denial, or (2) as otherwise instructed by the Court.

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10.

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FINAL DISPOSITION
Within sixty days after the final disposition of this action, each party shall return all

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designated material to the designator or destroy such material, including all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any designated

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material. The receiving party must submit a written certification to the designator by the 60- day

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deadline that (1) identifies (by category, where appropriate) all the designated material that was

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returned or destroyed, and (2) affirms that the receiving party has not retained any copies,

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abstracts, compilations, summaries, or any other format reproducing or capturing any of the

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designated material. This provision shall not prevent counsel from retaining an archival copy of

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all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain designated material. Any

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such archival copies remain subject to this Order.

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Dated: November 29, 2016

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LATHAM & WATKINS LLP

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By: /s/ Colleen C. Smith

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Michele D. Johnson
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626-1925
Tel: [phone]
[e-mail]

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Colleen C. Smith
12670 High Bluff Drive
San Diego, CA 92130-3086
Tel: [phone]
[e-mail]

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Sarah A. Greenfield (pro hac vice)
555 Eleventh Street NW, Suite 1000
Washington, DC 200004-1304
Tel: [phone]
[e-mail]

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Attorneys for Defendants Puma
Biotechnology, Inc., Alan H. Auerbach,
and Charles R. Eyler

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Dated: November 29, 2016
ROBBINS GELLER RUDMAN & DOWD
LLP

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By: /s/ Tor Gronborg

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Tor Gronborg
Trig R. Smith
J. Marco Janoski Gray
Susannah R. Conn
655 West Broadway, Suite 1900
San Diego, CA 92101
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Lead Counsel for Plaintiff

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All signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content

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and have authorized the filing.

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Dated: November 29, 2016

LATHAM & WATKINS LLP

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/s/ Colleen C. Smith
Colleen C. Smith

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ORDER
GOOD CAUSE APPEARING, the Court hereby approves this Stipulation and
Protective Order.
IT IS SO ORDERED.

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DATED: December 06, 2016

_____________________________________
Honorable Jay C. Gandhi
United States Magistrate Judge

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Protective Order that was issued by the United States District Court for the

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Central District of California on _______ [date] in the case of Hsingching HSU v. Puma

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Biotechnology, Inc., et al., Case No. 8:15-cv-00865 AG (JCGx). I agree to comply with and to

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be bound by all the terms of this Protective Order, and I understand and acknowledge that failure

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to so comply could expose me to sanctions and punishment for 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 Protective

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Order to any person or entity except in strict compliance with this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Central District of California for the purpose of enforcing this Order, even if such enforcement

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proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Order.

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Date: ___________________________

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City and State where sworn and signed: _________________________________

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Printed name: ____________________
[printed name]

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Signature: _______________________

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[signature]

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