Iconlab Inc. et al v. Valeant Pharmaceuticals International, Inc. et al

Filing 84

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott re Stipulation for Protective Order 83 . (twdb)

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1 2 3 4 5 6 7 HUESTON HENNIGAN LLP Moez M. Kaba (257456) mkaba@hueston.com Steven N. Feldman (281405) sfeldman@hueston.com Note Changes Made by the Court 523 West 6th Street, Suite 400 Los Angeles, CA 90014 Telephone: (213) 788-4340 Facsimile: (888) 775-0898 Attorneys for Defendants Valeant Pharmaceuticals International, Inc. and Bausch & Lomb Incorporated 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION 11 12 13 ICONLAB INC., a California corporation, ICON LAB GmbH, a German corporation, REPER-NN, CO. LTD, a Russian corporation, Plaintiffs, 14 v. 15 20 VALEANT PHARMACEUTICALS INTERNATIONAL, INC., a Delaware corporation; BAUSCH & LOMB INCORPORATED, a New York corporation; ANADOLU TIP TEKNOLOJILERI URETIM PAZARLAMA ITHALAT IHRACAT TICARET ve SANAYI ANONIM SIRKETI, a Turkish corporation, AND DOES 1-20, inclusive, 21 Defendants. 16 17 18 19 22 23 24 25 26 27 28 1. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 8:16-cv-01321-JLS-KES Discovery Document: Referred to Magistrate Judge Karen E. Scott STIPULATED PROTECTIVE ORDER PURPOSES, LIMITATIONS, AND GOOD CAUSE A. Purposes and Limitations Discovery in this action is likely to involve production of confidential, proprietary, competitively sensitive, or private information for which special protection from public STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 disclosure and from use for any purpose other than prosecuting this litigation may be 2 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the 3 following Stipulated Protective Order. The parties acknowledge that this Order does not 4 confer blanket protections on all disclosures or responses to discovery and that the 5 protection it affords from public disclosure and use extends only to the limited information 6 or items that are entitled to confidential treatment under the applicable legal principles. 7 The parties further acknowledge, as set forth in Section 12.1, below, that this Stipulated 8 Protective Order does not entitle them to file confidential information under seal; Civil 9 Local Rule 79-5 sets forth the procedures that must be followed and the standards that will 10 be applied when a party seeks permission from the court to file material under seal. 11 B. Good Cause Statement 12 This action is likely to involve trade secrets, valuable research, development, 13 commercial, financial, technical and/or proprietary information for which special 14 protection from public disclosure and from use for any purpose other than prosecution of 15 this action is warranted. Such confidential and proprietary materials and information 16 consist of, among other things, documents, testimony, information or other things that the 17 Designating Party (as defined below) believes, in good faith, contain (1) confidential 18 business, financial, personal, or commercial information or competitively-sensitive 19 information not customarily disclosed to the general public; or (2) any third-party 20 documents, testimony or information or other things that the third party currently 21 maintains as confidential, seeks to maintain as confidential for purposes of the above- 22 captioned action, and the disclosure of which may have the effect of causing harm to the 23 third-party persons, firm, partnership, corporation or organization from which the 24 documents, testimony or information was obtained. Confidential information shall also 25 include business negotiations and/or dealings with each other and third parties, business 26 agreements with each other and third parties, financial information about the entities, 27 financial transactions with each other and third parties, information regarding confidential 28 2 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 business practices, confidential research and development about the entities’ products, 2 commercial information, information implicating privacy rights of third parties, 3 information otherwise generally unavailable to the public, or which may be privileged or 4 otherwise protected from disclosure under state or federal statutes, court rules, case 5 decisions, or common law. 6 Accordingly, to expedite the flow of information, to facilitate the prompt resolution 7 of disputes over confidentiality of discovery materials, to adequately protect information 8 the parties are entitled to keep confidential, to ensure that the parties are permitted 9 reasonable necessary uses of such material in preparation for and in the conduct of trial, to 10 address their handling at the end of the litigation, and serve the ends of justice, a protective 11 order for such information is justified in this matter. It is the intent of the parties that 12 information will not be designated as confidential for tactical reasons and that nothing be 13 so designated without a good faith belief that it has been maintained in a confidential, non- 14 public manner, and there is good cause why it should not be part of the public record of 15 this case. 16 2. 17 18 19 20 DEFINITIONS 2.1 2.2 Action: this pending federal lawsuit. Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 21 how it is generated, stored or maintained) or tangible things that qualify for protection 22 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 23 Statement. Such information may consist of, without limitation, (1) testimony given in 24 this Action by any Party (as defined below) or by any third party (whether oral, in writing, 25 or via videotape); (2) documents produced in this action by any party or by any third party; 26 (3) written discovery responses given by any Party; (4) any documents or pleadings filed 27 with the Court which attach, contain or disclose any such “CONFIDENTIAL” 28 3 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 Information; and (5) the information contained within such documents, testimony or 2 discovery responses so properly designated. 3 2.4 “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY” shall be limited 4 to such documents, testimony, information or other things that the Designating Party 5 believes, in good faith, contain sensitive and/or highly competitive information the 6 disclosure of which is likely to cause substantial harm to the competitive position of the 7 Designating Party, contain information in the way of social security numbers, account 8 numbers or other sensitive information that is subject to the right of privacy of any person, 9 or contain information alleged to be a sensitive and/or highly competitive trade secret the 10 disclosure of which is likely to cause substantial harm to the competitive position. None 11 of the restrictions set forth in this Stipulated Protective Order shall apply to any documents 12 or other information that are or become public knowledge by means not in violation of the 13 provisions of this Stipulated Protective Order, or any law or statute. 14 15 16 2.5 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.6 Designating Party: a Party or Non-Party that designates information or 17 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or 18 “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY.” 19 2.7 Disclosure or Discovery Material: all items or information, regardless 20 of the medium or manner in which it is generated, stored, or maintained (including, among 21 other things, testimony, transcripts, and tangible things), that are produced or generated in 22 disclosures or responses to discovery in this matter. 23 2.8 Expert: a person with specialized knowledge or experience in a matter 24 pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an 25 expert witness or as a consultant in this Action, (2) is not a current employee of a Party or 26 competitor of a Party, and (3) at the time of retention, is not anticipated to become an 27 employee of a Party or competitor of a Party. 28 4 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 2 2.9 House Counsel does not include Outside Counsel of Record or any other outside counsel. 3 4 House Counsel: attorneys who are employees of a party to this Action. 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this Action. 5 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 6 Action but are retained to represent or advise a party to this Action and have appeared in 7 this Action on behalf of that party or are affiliated with a law firm which has appeared on 8 behalf of that party, and includes support staff. 9 2.12 Party: any party to this Action, including all of its officers, directors, 10 employees, consultants, retained experts, and Outside Counsel of Record (and their 11 support staffs). 12 13 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 14 2.14 Professional Vendors: persons or entities that provide litigation support 15 services (e.g., photocopying, videotaping, translating, preparing exhibits or 16 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 17 their employees and subcontractors. 18 19 2.15 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY.” 20 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from 21 a Producing Party. 22 3. 23 SCOPE The protections conferred by this Stipulation and Order cover not only Protected 24 Material (as defined above), but also (1) any information copied or extracted from 25 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 26 Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel 27 that might reveal Protected Material. However, the protections conferred by this 28 5 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 Stipulated Protective Order do not cover the following information: (1) any information 2 that is in the public domain at the time of disclosure to a Receiving Party or becomes part 3 of the public domain after its disclosure to a Receiving Party as a result of publication not 4 involving a violation of this Order, including becoming part of the public record through 5 trial or otherwise; and (2) any information known to the Receiving Party prior to the 6 disclosure or obtained by the Receiving Party after the disclosure from a source who 7 obtained the information lawfully and under no obligation of confidentiality to the 8 Designating Party. 9 Any use of Protected Material at trial shall be governed by the orders of the trial 10 judge. This Order does not govern the use of Protected Material at trial. 11 4. DURATION 12 Even after final disposition of this litigation, the confidentiality obligations imposed 13 by this Order shall remain in effect until a Designating Party agrees otherwise in writing or 14 a court order otherwise directs. Final disposition shall be deemed to be the later of (1) 15 dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final 16 judgment herein after the completion and exhaustion of all appeals, rehearings, remands, 17 trials, or reviews of this Action, including the time limits for filing any motions or 18 applications for extension of time pursuant to applicable law. 19 5. 20 DESIGNATING PROTECTED MATERIAL 5.1 Designating Material for Protection. Parties and Non-Parties may designate 21 Discovery Material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- 22 ATTORNEY’S EYES ONLY” where the material meets the requirements listed in 23 Sections 2.3 and 2.4, above. 24 5.2 Exercise of Restraint and Care in Designating Material for Protection. Each 25 Party or Non-Party that designates information or items for protection under this Order 26 must take care to limit any such designation to specific material that qualifies under the 27 appropriate standards. To the extent it is practical to do so, the Designating Party must 28 6 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 designate for protection only those parts of material, documents, items, or oral or written 2 communications that qualify so that other portions of the material, documents, items, or 3 communications for which protection is not warranted are not swept unjustifiably within 4 the ambit of this Order. 5 Designations that are shown to be clearly unjustified or that have been made for an 6 improper purpose (e.g., to unnecessarily encumber the case development process or to 7 impose unnecessary expenses and burdens on other parties) may expose the Designating 8 Party to sanctions. 9 If it comes to a Designating Party’s attention that information or items that it 10 designated for protection do not qualify for protection, that Designating Party must 11 promptly notify all other Parties that it is withdrawing the inapplicable designation. 12 5.3 Any Party May Designate Information Produced by Other Party. Any Party 13 may designate information or documents disclosed by another Party or Non-Party in 14 response to written discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- 15 ATTORNEY’S EYES ONLY” pursuant to this Order by so indicating in writing within 21 16 days after receipt of said information or documents, providing an identification by relevant 17 document numbers or other means of the document or information (or portion thereof) to 18 be so designated. 19 5.4 Manner and Timing of Designations. Disclosure or Discovery Material that 20 qualifies for protection under this Order must be clearly so designated before the material 21 is disclosed or produced. 22 Designation in conformity with this Order requires: 23 (a) for information in documentary form (e.g., paper or electronic documents, but 24 excluding transcripts of depositions or other pretrial or trial proceedings), that the 25 Producing Party affix at a minimum, the legend “CONFIDENTIAL” or “HIGHLY 26 CONFIDENTIAL-ATTORNEY’S EYES ONLY” to each page that contains protected 27 material. If only a portion or portions of the material on a page qualifies for protection, the 28 7 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 Producing Party also must clearly identify the protected portion(s) by making appropriate 2 markings in the margins or by some other method that clearly designates such portions as 3 Protected Material. 4 A Party or Non-Party that makes original documents available for inspection need 5 not designate them for protection until after the inspecting Party has indicated which 6 documents it would like copied and produced. During the inspection and before the 7 designation, all of the material made available for inspection shall be deemed 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY.” 9 After the inspecting Party has identified the documents it wants copied and produced, the 10 Producing Party must determine which documents, or portions thereof, qualify for 11 protection under this Order. Then, before producing the specified documents, the 12 Producing Party must affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- 13 ATTORNEY’S EYES ONLY” legend to each page that contains Protected Material. If 14 only a portion or portions of the material on a page qualifies for protection, the Producing 15 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 16 markings in the margins). 17 (b) for testimony given in depositions or in other pretrial proceedings, that the 18 Designating Party identify the Disclosure or Discovery Material on the record, before the 19 close of the deposition, hearing, or other proceeding, all protected testimony and specify 20 the level of protection being asserted. When it is impractical to identify separately each 21 portion of testimony that is entitled to protection and it appears that substantial portions of 22 the testimony may qualify for protection, the Designating Party may invoke on the record 23 (before the deposition, hearing, or other proceeding is concluded) a right to have up to 21 24 days from the giving of the testimony to identify the specific portions of the testimony as 25 to which protection is sought and to specify the level of protection being asserted, 26 provided that the court reporter makes available a real time transcript; otherwise, the 21 27 day period shall begin to run from receipt of a paper bound transcript Only those portions 28 8 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 of the testimony that are appropriately designated for protection within the 21 days shall be 2 covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating 3 Party may specify, at the deposition or up to 21 days afterwards if that period is properly 4 invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY 5 CONFIDENTIAL-ATTORNEY’S EYES ONLY.” 6 The use of a document as an exhibit at a deposition shall not in any way affect its 7 designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEY’S 8 EYES ONLY.” 9 Deposition transcript pages that reflect Protected Material must be separately bound 10 by the court reporter and may not be disclosed to anyone except as permitted under this 11 Order. The Designating Party shall inform the court reporter of these requirements. 12 (c) for information produced in some form other than documentary and for any 13 other tangible items, that the Producing Party affix in a prominent place on the exterior of 14 the container or containers in which the information is stored the legend 15 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY.” If 16 only a portion or portions of the information warrants protection, the Producing Party, to 17 the extent practicable, shall identify the protected portion(s). 18 5.5 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 19 to designate qualified information or items does not, standing alone, waive the Designating 20 Party’s right to secure protection under this Order for such material. Upon timely 21 correction of a designation, the Receiving Party must make reasonable efforts to assure 22 that the material is treated in accordance with the provisions of this Order. 23 The Producing Party may subsequently designate Discovery Material as Protected 24 Material in the following manner: (a) the Producing Party must give prompt, written notice 25 to Outside Counsel for the Party to whom such documents, testimony, or other information 26 have been disclosed informing them that the information produced is designated Protected 27 Material; (b) Outside Counsel receiving notice of newly designated documents, testimony 28 9 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 or other information, shall take reasonable steps to comply with such new designation, 2 including reasonable steps to retrieve any documents distributed inconsistent with such 3 new designation, but shall not be responsible for any disclosure to non-parties occurring 4 before receipt of notice; and (c) at its own expense, the Designating Party will provide the 5 Party receiving the notice with another copy of the documents, deposition testimony, or 6 other information that bears the appropriate designation. 7 5.6 Inspection of Factories and Land. The following applies to inspections of 8 factories and land, other than inspecting that which is viewable by the public at large from 9 a place where the public has right to be. Inspection observations (whether kept mental or 10 notated,) photographs, testing, and samples taken are “HIGHLY CONFIDENTIAL- 11 ATTORNEY’S EYES ONLY.” In accordance with usual procedures, an inspection 12 demand is to be pursuant to F.R.Civ.P., Rule 34. Rule 34(b)(1) provides that a demand for 13 inspection: “must describe with reasonable particularity each item or category of items to 14 be inspected” and Rule 34(a)(2) that a responding party: permit entry onto designated land 15 or other property possessed or controlled by the responding party, so that the requesting 16 party may inspect, measure, survey, photograph, test, or sample the property or any 17 designated object or operation on it. 18 These rules are construed to mean that a Rule 34 Inspection Demand specify with 19 particularity the categories of places within a factory for which inspection is to be sought 20 and to specify with particularity the categories of things for testing and sampling. Nothing 21 herein abridges a party from objecting to a demand for inspection of factory or land based 22 on domestic law of where the factory or land is situated and/or a contractual relationship 23 with a non-party to maintain confidentiality and seeking a further order of this court 24 protecting the objecting party from said inspection demand. 25 6. 26 27 28 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court’s Scheduling Order. Unless 10 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 a prompt challenge is necessary to avoid foreseeable substantial unfairness, unnecessary 2 substantial economic burdens, or a significant disruption or delay of the litigation, a Party 3 does not waive its right to challenge a “CONFIDENTIAL” or “HIGHLY 4 CONFIDENTIAL-ATTORNEY’S EYES ONLY” designation. 5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 6 process under Local Rule 37.1 et seq. To challenge a designation, the Challenging Party 7 shall initiate the dispute resolution process by providing the Designating Party and the 8 Named Parties with written notice of each designation at issue which describes the basis 9 for each challenge. Within 7 days of receipt of said notice, the Designating Party shall 10 provide the basis for the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL- 11 ATTORNEY’S EYES ONLY” designation to the Challenging Parties and the Parties. The 12 parties shall attempt to resolve each challenge in good faith by conferring directly (in voice 13 to voice dialogue; other forms of communication are not sufficient) within 14 days of the 14 date of service of notice. A Challenging Party may proceed to the next stage of the 15 challenge process only if it has engaged in this meet and confer process first or establishes 16 that the Designating Party is unwilling to do so in a timely manner. 17 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 18 intervention, the Designating Party shall file and serve a Joint Stipulation concerning the 19 matters in dispute, pursuant to Local Rules 37-1 and 37-2, within 21 days of the initial 20 notice of challenge or within 14 days of the parties agreeing that the meet and confer 21 process will not resolve their dispute, whichever is earlier. Failure by the Designating 22 Party to make such a motion through the filing of a Joint Stipulation shall automatically 23 waive the confidentiality designation for each challenged designation, unless there was 24 non-cooperation by the Receiving Party or other good cause. In addition, if not 25 inconsistent with any restriction in this order, the Challenging Party may challenge a 26 confidentiality designation at any time if there is good cause for doing so, including a 27 challenge to the designation of a deposition transcript or any portions thereof. 28 11 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 6.4 The burden of persuasion in any such challenge proceeding shall be on the 2 Designating Party. Frivolous assertions of confidentiality and/or challenges, and those 3 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens 4 on other parties) may expose the Designating Party or the Challenging Party, as the case 5 may be, to sanctions. Unless the Designating Party has waived or withdrawn the 6 confidentiality designation, all parties shall continue to afford the material in question the 7 level of protection to which it is entitled under the Producing Party’s designation until the 8 Court rules on the challenge. 9 7. 10 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 11 disclosed or produced by another Party or by a Non-Party in connection with this Action 12 only for prosecuting, defending, or attempting to settle this Action. Such Protected 13 Material may be disclosed only to the categories of persons and under the conditions 14 described in this Order. When the Action has been terminated, a Receiving Party must 15 comply with the provisions of Section 14 below (FINAL DISPOSITION). 16 Protected Material must be stored and maintained by a Receiving Party at a location 17 and in a secure manner that ensures that access is limited to the persons authorized under 18 this Order. 19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 20 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 21 may disclose Protected Material designated “CONFIDENTIAL” only to: 22 (a) the Receiving Party’s insurers and Outside Counsel of Record in this Action, 23 as well as employees of said Outside Counsel of Record to whom it is reasonably 24 necessary to disclose the information for this Action; 25 26 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; 27 28 12 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure 2 is reasonably necessary for this Action and who have signed the “Acknowledgment and 3 Agreement to Be Bound” (Exhibit A); 4 (d) the court and its personnel; 5 (e) deposition stenographic reporters, videographers, and their staff; 6 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 7 to whom disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 10 11 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses, and attorneys for witnesses, in the Action 12 to whom disclosure is reasonably necessary provided: (1) the deposing party requests that 13 the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted to 14 keep any confidential information unless they sign the “Acknowledgment and Agreement 15 to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by 16 the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal 17 Protected Material may be separately bound by the court reporter and may not be disclosed 18 to anyone except as permitted under this Stipulated Protective Order; 19 (i) without need for compliance with subparagraph (h), at any deposition of: 20 1. a witness who is an employee or agent of a party may be shown and 21 questioned on that party’s confidential information; 22 2. a witness who is an author or recipient of a document containing 23 confidential information, is a custodian or a person who otherwise possessed 24 or knew the information may be shown and questioned on that document 25 and/or information; 26 3. a deponent whom the Party designates under Rule 30(b)(6) regarding the 27 Rule 30(b)(6) topic(s) to which that Party’s confidential information pertains, 28 13 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 the witness will not be permitted to keep any confidential information unless they sign the 2 “Acknowledgment and Agreement to Be Bound” (Exhibit A), or otherwise agreed by the 3 Designating Party or ordered by the court. Pages of transcribed deposition testimony or 4 exhibits to depositions that reveal Protected Material may be separately bound by the court 5 reporter and may not be disclosed to anyone except as permitted under this Stipulated 6 Protective Order 7 8 9 10 11 (j) in preparation for trial testimonial testimony, confidential information which that witness was questioned on during deposition and (k) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions. 7.3 Disclosure of “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY” 12 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 13 Designating Party, a Receiving Party may disclose Protected Material designated 14 “HIGHLY CONFIDENTIAL ATTORNEY’S EYES ONLY” only to the following 15 persons: 16 (a) the Receiving Party’s Outside Counsel in this action, as well as Outside 17 Counsel’s employees to whom it is reasonably necessary to disclose the information for 18 this Action and who have signed the “Acknowledgment and Agreement to Be Bound” 19 (Exhibit A); 20 (b) Experts (as defined in this Order) of the Receiving Party to whom disclosure 21 is reasonably necessary for this Action and who have signed the “Acknowledgment and 22 Agreement to Be Bound” (Exhibit A); 23 (c) the court and its personnel; 24 (d) deposition stenographic reporters and videographers and their staff; 25 (e) Professional Vendors to whom disclosure is reasonably necessary for this 26 Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 27 A); and 28 14 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 (f) during depositions, the author or recipient of a document containing the 2 highly confidential information or a custodian or other person who otherwise possessed or 3 knew the highly confidential information, 4 (g) during depositions, a deponent whom the party designates under Rule 5 30(b)(6) regarding the Rule 30(b)(6) topic(s) to which that Party’s highly confidential 6 information pertains; 7 8 (h) in preparation for trial testimonial testimony, highly confidential information which that witness was questioned during deposition and 9 (g) any mediator or settlement officer, and their supporting personnel, mutually 10 agreed upon by any of the parties engaged in settlement discussions. 11 8. 12 13 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that 14 compels disclosure of any information or items designated in this Action as Protected 15 Material, that Party must: 16 17 18 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to 19 issue in the other litigation that some or all of the material covered by the subpoena or 20 order is subject to this Protective Order. Such notification shall include a copy of this 21 Stipulated Protective Order; and 22 (c) cooperate with respect to all reasonable procedures sought to be pursued by 23 the Designating Party whose Protected Material may be affected, at the Designating 24 Party’s expense. 25 If the Designating Party timely seeks a protective order by a motion that is proper 26 under the law so as to suspend the obligation to produce, the Party served with the 27 subpoena or court order shall not produce the Protected Material before a determination by 28 15 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 the court from which the subpoena or order issued that the Protected Material must be 2 produced and compliance with said determination is not a violation of this order, unless 3 the Party has obtained the Designating Party’s permission. The Designating Party shall 4 bear the burden and expense of seeking protection in that court of its confidential material 5 and nothing in these provisions should be construed as authorizing or encouraging a 6 Receiving Party in this Action to disobey a lawful directive from another court. 7 9. 8 9 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non- 10 Party in this Action and designated as “CONFIDENTIAL.” Such information produced by 11 Non-Parties in connection with this litigation is protected by the remedies and relief 12 provided by this Order. Nothing in these provisions should be construed as prohibiting a 13 Non-Party from seeking additional protections. 14 (b) In the event that a Party is required, by a valid discovery request, to produce a 15 Non-Party’s confidential information in its possession, and the Party is subject to an 16 agreement with the Non-Party not to produce the Non-Party’s confidential information, 17 then the Party shall: 18 (1) promptly notify in writing the Requesting Party and the Non-Party that 19 some or all of the information requested is subject to a confidentiality agreement with a 20 Non-Party; 21 (2) promptly provide the Non-Party with a copy of the Stipulated 22 Protective Order in this Action, the relevant discovery request(s), and a reasonably specific 23 description of the information requested; and 24 25 26 (3) make the information requested available for inspection by the Non- Party, if requested. (c) If the Non-Party fails to seek a protective order from this court within 14 days 27 of receiving the notice and accompanying information, the Receiving Party may produce 28 16 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 the Non-Party’s confidential information responsive to the discovery request. If the Non- 2 Party timely seeks a protective order by a motion that is proper under the law so as to 3 suspend the obligation to produce, the Receiving Party shall not produce any information 4 in its possession or control that is subject to the confidentiality agreement with the Non- 5 Party before a determination by the court and compliance with said determination is not a 6 violation of this order. Absent a court order to the contrary, the Non-Party shall bear the 7 burden and expense of seeking protection in this court of its Protected Material. 8 10. 9 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 10 Protected Material to any person or in any circumstance not authorized under this 11 Stipulated Protective Order, the Receiving Party must immediately (a) notify the 12 Designating Party in writing what was disclosed and to whom, (b) use its best efforts to 13 retrieve all Protected Materials improperly disseminated, including all copies, (c) inform 14 the person or persons to whom such unauthorized disclosures were made of all the terms 15 of this Order, and (d) request such person or persons to execute the “Acknowledgment and 16 Agreement to Be Bound” that is attached hereto as Exhibit A. 17 11. 18 19 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL The inadvertent disclosure of a document that a Producing Party believes is subject 20 to privilege or work product protection shall not constitute a waiver or estoppel of any 21 such privilege or protection. In the event of such inadvertent disclosure, the producing 22 party may provide written notice of same and request that all copies of any such 23 documents be returned, whereupon the Receiving Party shall return all copies of such 24 documents, delete them from its files, destroy all notes or other work product that reflect 25 them, and shall not use the documents in any way. 26 When a Producing Party gives notice to Receiving Parties that certain inadvertently 27 produced material is subject to a claim of privilege or other protection, the obligations of 28 17 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 2 This provision is not intended to modify whatever procedure may be established in an e- 3 discovery order that provides for production without prior privilege review. Pursuant to 4 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the 5 effect of disclosure of a communication or information covered by the attorney-client 6 privilege or work product protection, the parties may incorporate their agreement in the 7 stipulated protective order submitted to the court. 8 12. 9 FILING PROTECTED MATERIAL IN COURT. 12.1 Filing Protected Materials. A Party that seeks to file under seal any Protected 10 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 11 under seal pursuant to a court order authorizing the sealing of the specific Protected 12 Material at issue. If a Party's request to file Protected Material under seal is denied by the 13 court, then the Receiving Party may file the information in the public record unless 14 otherwise instructed by the court. 15 12.2 This Order does not govern the treatment of Protected Material at trial, which 16 shall be later raised by the parties but and separately addressed by the Court. 17 13. 18 19 MISCELLANEOUS 13.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 20 13.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 21 Order, no Party waives any right it otherwise would have to object to disclosing or 22 producing any information or item on any ground not addressed in this Stipulated 23 Protective Order. Similarly, no Party waives any right to object on any ground to use in 24 evidence of any of the material covered by this Protective Order. 25 14. FINAL DISPOSITION 26 After the final disposition of this Action, as defined in Section 4, within 60 days of 27 a written request by the Designating Party, each Receiving Party must return all Protected 28 18 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 Material to the Producing Party or destroy such material. As used in this subdivision, “all 2 Protected Material” includes all copies, abstracts, compilations, summaries, and any other 3 format reproducing or capturing any of the Protected Material. Whether the Protected 4 Material is returned or destroyed, the Receiving Party must submit a written certification 5 to the Producing Party (and, if not the same person or entity, to the Designating Party) by 6 the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected 7 Material that was returned or destroyed and (2) affirms that the Receiving Party has not 8 retained any copies, abstracts, compilations, summaries or any other format reproducing or 9 capturing any of the Protected Material. Notwithstanding this provision, Counsel are 10 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and 11 hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 12 reports, attorney work product, and consultant and expert work product, even if such 13 materials contain Protected Material. Any such archival copies that contain or constitute 14 Protected Material remain subject to this Protective Order as set forth in Section 4 15 (DURATION). 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 19 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 15. Any violation of this Order may be punished by any and all appropriate measures 2 including, without limitation, contempt proceedings and/or monetary sanctions. 3 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 6 Dated: April 11, 2018 LAW OFFICES OF DAVID YOUNG 7 8 By: /s/ David Young__________________ David Young Attorneys for Plaintiffs IconLab Inc., Icon Lab GmbH, and Reper-NN, Co. Ltd. 9 10 11 12 Dated: April 11, 2018 13 HUESTON HENNIGAN LLP By: 14 15 /s/ Steven N. Feldman______________ Moez M. Kaba Steven N. Feldman Attorneys for Defendants Valeant Pharmaceuticals International, Inc. and Bausch & Lomb Incorporated 16 17 18 19 20 21 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. Dated: April 16, 2018 _________________________________ Karen E. Scott United States Magistrate Judge 22 23 24 25 26 27 28 20 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _______________________ [print or type full name], of ____________________ 4 [print or type full address], have been presented with a Stipulated Protective Order 5 that was issued by the United States District Court for the Central District of 6 California on [date] in the case of Iconlab Inc., et al. v. Valeant Pharmaceuticals 7 International, Inc., et al., Case No. 8:16-cv-01321-JLS-KES. I agree to comply with 8 and to be bound by all the terms of this Stipulated Protective Order and I understand 9 and acknowledge that failure to so comply could expose me to sanctions and 10 punishment in the nature of contempt. I solemnly promise that I will not disclose in 11 any manner any information or item that is subject to this Stipulated Protective Order 12 to any person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for 14 the Central District of California for the purpose of enforcing the terms of this 15 Stipulated Protective Order, even if such enforcement proceedings occur after 16 termination of this action. 17 Date: ____________________________________ 18 19 Printed name: ________________________________________ 20 21 Signature: ________________________________________ 22 23 24 25 26 27 28 21 STIPULATED PROTECTIVE ORDER Case No: 8:16-CV-01321-JLS-KES

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