Allergan Inc v. Dermavita Limited Partnership et al

Filing 50

PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick Pursuant to Stipulation for Protective Order 49 . (twdb)

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1 NOTE: CHANGES MADE BY THE COURT 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 SOUTHERN DIVISION 15 16 ALLERGAN, INC, 17 Plaintiff, 18 19 20 v. DERMAVITA LIMITED PARTNERSHIP, DIMA CORP. S.A., and KBC MEDIA RELATIONS LLC, 21 Case No. 8:17-cv-00619-CJC (DFMx) [PROPOSED] PROTECTIVE ORDER PURSUANT TO STIPULATION [Discovery Document: Referred to Magistrate Judge Douglas F. McCormick] Defendants. 22 23 24 Pursuant to the Parties’ Stipulation, and good cause appearing therefor, it is hereby 25 ORDERED that all parties to this action and their counsel comply with the following 26 protective order: 27 // // 28 STIPULATED PROTECTIVE ORDER 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be 5 warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does not 7 confer blanket protections on all disclosures or responses to discovery and that the 8 protection it affords from public disclosure and use extends only to the limited 9 information or items that are entitled to confidential treatment under the applicable legal 10 principles. The parties further acknowledge, as set forth in Section 12.3, below, that this 11 Stipulated Protective Order does not entitle them to file confidential information under 12 seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the 13 standards that will be applied when a party seeks permission from the court to file 14 material under seal. 15 1.1 GOOD CAUSE STATEMENT1: The Court may only enter a protective 16 order upon a showing of good cause. See, e.g., Kamakana v. City and Cnty. of Honolulu, 17 447 F.3d 1172, 1176 (9th Cir. 2006) (holding that parties must make a “particularized 18 showing” under Rule 26(c) for court to enter protective order). Stipulated protective 19 orders still require a showing of good cause. See, e.g., Makar-Wellbon v. Sony Elecs., 20 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999). Here, good cause exists to enter the parties 21 stipulated protective order for the following reasons:  22 Allergan is a publicly-traded, Fortune 100 pharmaceutical company with 23 valuable intellectual property, including its JUVEDERM® trademarks at 24 issue in this dispute. The Parties anticipate that discovery may require the 25 disclosure of confidential, proprietary and trade secret information (such as 26 27 28 1 This recitation of facts is merely a summation for purposes of this Stipulated Protective Order and does not constitute representations by any party and shall not be used against any party in litigation. 2 STIPULATED PROTECTIVE ORDER 1 proprietary market research and information about products not yet publicly 2 available; see Section 2.7, below) about current products and, potentially, 3 products under development and not yet released to the public, the public 4 disclosure of which would cause a substantial risk of serious harm to the 5 Parties, their businesses and their owners/shareholders;  6 Allergan contends that, through the press release pled in the Complaint 7 [Compl., Ex. C, Dkt. 1-3], defendant Dima Corp., S.A. (“Dima”) announced 8 its intention to launch cosmetics and cosmeceutical products in the U.S. and 9 abroad under the mark “Juvederm,” under a license with defendant 10 Dermavita Limited Partnership (“Dermavita”). Allergan currently 11 manufactures, markets and sells an injectable dermal filler under its 12 registered JUVEDERM® trademark. [Compl., Ex. A, Dkt. 1-1.] Allergan 13 alleges that Dermavita and Dima both make and market products called 14 “Juvederm” abroad as well. As alleged in the Complaint, because Dima, 15 Dermavita and Allergan are poised to be direct competitors in the U.S. and 16 are already direct competitors globally, the disclosure of confidential, 17 proprietary and trade secret information during the discovery process could 18 risk creating a competitive advantage/disadvantage and causing a substantial 19 risk of serious harm. 20 Protective orders are frequently issued in circumstances like these where direct 21 competitors are involved in a dispute over intellectual property. See, e.e., Unilin Beheer 22 B.V. v. NSL Trading Corp., No. CV 14-2210 BRO (SSX), 2015 WL 12659918, at *3 23 (C.D. Cal. Jan. 8, 2015) (“Protective orders are a common feature of patent cases because 24 the parties are often competitors who understandably are reluctant to disclose trade 25 secrets and other confidential information to each other (and to the public).”) (citing 26 Northbrook Digital, LLC v. Vendio Services, Inc., 625 F. Supp. 2d 728, 734 (D. Minn. 27 2008)). 28 // 3 STIPULATED PROTECTIVE ORDER 1 2 Accordingly, for similar reasons here, the parties respectfully request that the Court enter their stipulated protective order set forth herein. 3 1.2 Form of Stipulation: The parties have based this Stipualted Protective Order 4 on the Model Protective Order for Litigation Involving Patents, Highly Sensitive 5 Confidential Information and/or Trade Secrets of the U.S. District Court for the N.D. 6 Cal., available at: 7 2. 8 9 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 10 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it 11 is generated, stored or maintained) or tangible things that qualify for protection under 12 Federal Rule of Civil Procedure 26©. 13 14 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 15 2.4 Designating Party: a Party or Non-Party that designates information or items 16 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or 17 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 18 2.5 Disclosure or Discovery Material: all items or information, regardless of the 19 medium or manner in which it is generated, stored, or maintained (including, among 20 other things, testimony, transcripts, and tangible things), that are produced or generated in 21 disclosures or responses to discovery in this matter. 22 2.6 Expert: a person with specialized knowledge or experience in a matter 23 pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as 24 an expert witness or as a consultant in this action, (2) is not a past or current employee of 25 a Party or of a Party’s competitor, and (3) at the time of retention, is not anticipated to 26 become an employee of a Party or of a Party’s competitor. 27 // 28 // 4 STIPULATED PROTECTIVE ORDER 1 2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information 2 or Items: extremely sensitive “CONFIDENTIAL” information or items,” disclosure of 3 which to another Party or Non-Party would create a substantial risk of serious harm that 4 could not be avoided by less restrictive means, specifically: (a) any documents relating 5 to pricing, cost and other financial or marketing information; (b) business plans and 6 competitive strategies; (c) proprietary market research; (d) patent applications; and (e) 7 information concerning products currently under development for which an ANDA, 8 NDA, or supplemental NDA has not been approved, in each case (a), (b), (c), (d) and (e), 9 to the extent such information is not publicly available. The Parties reserve their rights to 10 amend this list of documents that qualify for “HIGHLY CONFIDENTIAL - 11 ATTORNEYS’ EYES ONLY” protection based on further discovery. 12 2.8 House Counsel: attorneys who are employees of a party to this action or a 13 parent, subsidiary, sister or affiliate company of a party to this action. House Counsel 14 does not include Outside Counsel of Record or any other outside counsel. 15 16 17 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a party to 18 this action but are retained to represent or advise a party to this action and have appeared 19 in this action on behalf of that party or are affiliated with a law firm which has appeared 20 on behalf of that party. 21 2.11 Party: any party to this action, including all of its officers, directors, 22 employees, consultants, retained experts, House Counsel and Outside Counsel of Record 23 (and their support staffs). 24 25 26 27 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or 28 5 STIPULATED PROTECTIVE ORDER 1 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 2 their employees and subcontractors. 3 2.14 Protected Material: any Disclosure or Discovery Material that is designated 4 as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 5 ONLY.” 6 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from 7 a Producing Party. 8 3. 9 SCOPE The protections conferred by this Stipulation and Order cover not only Protected 10 Material (as defined above), but also (1) any information copied or extracted from 11 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 12 Material; and (3) any testimony, conversations, or presentations by Parties or their 13 Counsel that might reveal Protected Material. However, the protections conferred by this 14 Stipulation and Order do not cover the following information: (a) any information that is 15 in the public domain at the time of disclosure to a Receiving Party or becomes part of the 16 public domain after its disclosure to a Receiving Party as a result of publication not 17 involving a violation of this Order, including becoming part of the public record through 18 trial or otherwise; and (b) any information known to the Receiving Party prior to the 19 disclosure or obtained by the Receiving Party after the disclosure from a source who 20 obtained the information lawfully and under no obligation of confidentiality to the 21 Designating Party. Any use of Protected Material at trial shall be governed by a separate 22 agreement or order. 23 4. 24 DURATION Even after final disposition of this litigation, the confidentiality obligations 25 imposed by this Order shall remain in effect until a Designating Party agrees otherwise in 26 writing or a court order otherwise directs. Final disposition shall be deemed to be the later 27 of (1) dismissal of all claims and defenses in this action, with or without prejudice; and 28 (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, 6 STIPULATED PROTECTIVE ORDER 1 remands, trials, or reviews of this action, including the time limits for filing any motions 2 or applications for extension of time pursuant to applicable law. 3 5. 4 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 5 Party or Non-Party that designates information or items for protection under this Order 6 must take care to limit any such designation to specific material that qualifies under the 7 appropriate standards. To the extent it is practical to do so, the Designating Party must 8 designate for protection only those parts of material, documents, items, or oral or written 9 communications that qualify – so that other portions of the material, documents, items, or 10 communications for which protection is not warranted are not swept unjustifiably within 11 the ambit of this Order. 12 Mass, indiscriminate, or routinized designations are prohibited. Designations that 13 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 14 to unnecessarily encumber or retard the case development process or to impose 15 unnecessary expenses and burdens on other parties) expose the Designating Party to 16 sanctions. 17 If it comes to a Designating Party’s attention that information or items that it 18 designated for protection do not qualify for protection at all or do not qualify for the level 19 of protection initially asserted, that Designating Party must promptly notify all other 20 parties that it is withdrawing the mistaken designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in this 22 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 23 ordered, Disclosure or Discovery Material that qualifies for protection under this Order 24 must be clearly so designated before the material is disclosed or produced. 25 26 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 27 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 28 that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY 7 STIPULATED PROTECTIVE ORDER 1 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains protected 2 material. If only a portion or portions of the material on a page qualifies for protection, 3 the Producing Party also must clearly identify the protected portion(s) (e.g., by making 4 appropriate markings in the margins) and must specify, for each portion, the level of 5 protection being asserted. If a document is produced in native format such that the 6 addition of a legend on each page is not appropriate or applicable, the confidentiality 7 legend should be included in the file name (e.g., PTY_0001-CONFIDENTIAL). 8 A Party or Non-Party that makes original documents or materials available for 9 inspection need not designate them for protection until after the inspecting Party has 10 indicated which material it would like copied and produced. During the inspection and 11 before the designation, all of the material made available for inspection shall be deemed 12 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting 13 Party has identified the documents it wants copied and produced, the Producing Party 14 must determine which documents, or portions thereof, qualify for protection under this 15 Order. Then, before producing the specified documents, the Producing Party must affix 16 the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 17 ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a 18 portion or portions of the material on a page qualifies for protection, the Producing Party 19 also must clearly identify the protected portion(s) (e.g., by making appropriate markings 20 in the margins) and must specify, for each portion, the level of protection being asserted. 21 (b) for testimony given in deposition or in other pretrial or trial proceedings, 22 that the Designating Party identify on the record, before the close of the deposition, 23 hearing, or other proceeding, all protected testimony and specify the level of protection 24 being asserted. When it is impractical to identify separately each portion of testimony that 25 is entitled to protection and it appears that substantial portions of the testimony may 26 qualify for protection, the Designating Party may invoke on the record (before the 27 deposition, hearing, or other proceeding is concluded) a right to have up to 21 days from 28 the date the transcript is prepared and delivered to the Designating Party to identify the 8 STIPULATED PROTECTIVE ORDER 1 specific portions of the testimony as to which protection is sought and to specify the level 2 of protection being asserted. Only those portions of the testimony that are appropriately 3 designated for protection within the 21 days shall be covered by the provisions of this 4 Stipulated Protective Order. Alternatively, a Designating Party may specify, at the 5 deposition or up to 21 days afterwards if that period is properly invoked, that the entire 6 transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 7 ATTORNEYS’ EYES ONLY.” If the Designating Party properly invokes the 21 day 8 period to designate testimony for protection, then all of the testimony for that deposition, 9 hearing or other proceeding shall be deemed “HIGHLY CONFIDENTIAL – 10 ATTORNEYS’ EYES ONLY” during the 21 day period. 11 Parties shall give the other parties notice if they reasonably expect a deposition, 12 hearing or other proceeding to include Protected Material so that the other parties can 13 ensure that only authorized individuals who have signed the “Acknowledgment and 14 Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a 15 document as an exhibit at a deposition shall not in any way affect its designation as 16 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 17 Transcripts containing Protected Material shall have an obvious legend on the title 18 page that the transcript contains Protected Material, and the title page shall be followed 19 by a list of all pages (including line numbers as appropriate) that have been designated as 20 Protected Material and the level of protection being asserted by the Designating Party. 21 The Designating Party shall inform the court reporter of these requirements. After the 22 expiration of that period, the transcript shall be treated only as actually designated. 23 (c) for information produced in some form other than documentary and for 24 any other tangible items, that the Producing Party affix in a prominent place on the 25 exterior of the container or containers in which the information or item is stored the 26 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 27 ONLY.” If only a portion or portions of the information or item warrant protection, the 28 9 STIPULATED PROTECTIVE ORDER 1 Producing Party, to the extent practicable, shall identify the protected portion(s) and 2 specify the level of protection being asserted. 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 4 to designate qualified information or items does not, standing alone, waive the 5 Designating Party’s right to secure protection under this Order for such material. Upon 6 timely correction of a designation, the Receiving Party must make reasonable efforts to 7 assure that the material is treated in accordance with the provisions of this Order. 8 6. 9 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation 10 of confidentiality at any time. Unless a prompt challenge to a Designating Party’s 11 confidentiality designation is necessary to avoid foreseeable, substantial unfairness, 12 unnecessary economic burdens, or a significant disruption or delay of the litigation, a 13 Party does not waive its right to challenge a confidentiality designation by electing not to 14 mount a challenge promptly after the original designation is disclosed. 15 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 16 process by providing written notice of each designation it is challenging and describing 17 the basis for each challenge. To avoid ambiguity as to whether a challenge has been 18 made, the written notice must recite that the challenge to confidentiality is being made in 19 accordance with this specific paragraph of the Protective Order. The parties shall attempt 20 to resolve each challenge in good faith and must begin the process by conferring directly 21 (in voice to voice dialogue; other forms of communication are not sufficient) within 14 22 days of the date of service of notice. In conferring, the Challenging Party must explain 23 the basis for its belief that the confidentiality designation was not proper and must give 24 the Designating Party an opportunity to review the designated material, to reconsider the 25 circumstances, and, if no change in designation is offered, to explain the basis for the 26 chosen designation. A Challenging Party may proceed to the next stage of the challenge 27 process only if it has engaged in this meet and confer process first or establishes that the 28 10 STIPULATED PROTECTIVE ORDER 1 Designating Party is unwilling to participate in the meet and confer process in a timely 2 manner. 3 6.3 4 Judicial Intervention. 6.3.1 Informal Resolution: If the Parties cannot resolve a challenge without 5 court intervention, and if both parties agree, the Designating Party shall request an 6 informal telephonic conference with Magistrate Judge McCormick as set forth in Judge 7 McCormick’s Procedure No. 3. Only if the parties are unable to reach an agreement to 8 proceed with an informal conference, or if the informal conference fails to resolve the 9 dispute, can the Designating Party proceed with the process set forth in section 6.3.2, 10 11 below: 6.3.2 Formal Resolution: If the Parties are unable to resolve their 12 disagreement informally with the help of Magistrate Judge McCormick, the Designating 13 Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 and 14 37 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 15 initial notice of challenge or within 14 days of the parties agreeing that the meet and 16 confer process will not resolve their dispute, whichever is earlier. Each such motion must 17 be accompanied by a competent declaration affirming that the movant has complied with 18 the meet and confer requirements imposed in the preceding paragraph. Failure by the 19 Designating Party to make such a motion including the required declaration within 21 20 days (or 14 days, if applicable) shall automatically waive the confidentiality designation 21 for each challenged designation. 22 The burden of persuasion in any such challenge proceeding shall be on the 23 Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to 24 harass or impose unnecessary expenses and burdens on other parties) may expose the 25 Challenging Party to sanctions. Unless the Designating Party has waived the 26 confidentiality designation by failing to file a motion to retain confidentiality as described 27 above, all parties shall continue to afford the material in question the level of protection 28 11 STIPULATED PROTECTIVE ORDER 1 to which it is entitled under the Producing Party’s designation until the court rules on the 2 challenge. 3 7. 4 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 5 disclosed or produced by another Party or by a Non-Party in connection with this case 6 only for prosecuting, defending, or attempting to settle this litigation. Such Protected 7 Material may be disclosed only to the categories of persons and under the conditions 8 described in this Order. When the litigation has been terminated, a Receiving Party must 9 comply with the provisions of section 13 below (FINAL DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a 11 location and in a secure manner2 that ensures that access is limited to the persons 12 authorized under this Order. 13 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 14 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 15 may disclose any information or item designated “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Record in this action, as well 17 as employees of said Outside Counsel of Record to whom it is reasonably necessary to 18 disclose the information for this litigation; 19 (b) the officers, directors, and employees (including House Counsel) of the 20 Receiving Party to whom disclosure is reasonably necessary for this litigation and who 21 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 22 (c) Experts (as defined in this Order) of the Receiving Party to whom 23 disclosure is reasonably necessary for this litigation and who have signed the 24 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 (d) the court and its personnel; 26 (e) court reporters and their staff; 27 28 2 It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected Material in password-protected form. 12 STIPULATED PROTECTIVE ORDER 1 (f) professional jury or trial consultants, and Professional Vendors to whom 2 disclosure is reasonably necessary for this litigation and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (g) during their depositions, witnesses in the action to whom disclosure is 5 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be 6 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the 7 court. Pages of transcribed deposition testimony or exhibits to depositions that reveal 8 Protected Material must be identified by the court reporter with the appropriate 9 confidentiality designation and legend pursuant to this Order and may not be disclosed to 10 anyone except as permitted under this Stipulated Protective Order. 11 12 13 (h) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 14 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in 15 writing by the Designating Party, a Receiving Party may disclose any information or item 16 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 17 (a) the Receiving Party’s Outside Counsel of Record in this action, as well 18 as employees of said Outside Counsel of Record to whom it is reasonably necessary to 19 disclose the information for this litigation; 20 (b) House Counsel of the Receiving Party to whom disclosure is reasonably 21 necessary for this litigation and who has signed the “Acknowledgment and Agreement to 22 Be Bound” (Exhibit A). 23 (c) Experts of the Receiving Party to whom disclosure is reasonably 24 necessary for this litigation, and who have signed the “Acknowledgment and Agreement 25 to Be Bound” (Exhibit A); 26 (d) the court and its personnel; 27 (e) court reporters and their staff; 28 13 STIPULATED PROTECTIVE ORDER 1 (f) professional jury or trial consultants (including mock jurors), and 2 Professional Vendors to whom disclosure is reasonably necessary for this litigation and 3 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 4 5 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 6 In the event that counsel for a party believes it necessary to disclose any 7 information designed “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” to 8 any person not permitted under this Stipulated Protective Order, said counsel shall notify 9 counsel for the Producing Party in writing identifying (a) the specific information, 10 documents, or testimony proposed to be disclosed; (b) the person(s) to whom such 11 disclosure is proposed to be made; and (c) a short summary explaining the need to 12 disclose the Protected Information to the identified person(s). If an agreement cannot be 13 reached, the party desiring to disclose “HIGHLY CONFIDENTIAL - ATTORNEYS’ 14 EYES ONLY” information may not disclose such information but may make an 15 appropriate motion and shall bear the burden of showing that the proposed disclosure is 16 necessary. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 18 OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation that 20 compels disclosure of any information or items designated in this action as 21 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 22 that Party must: 23 24 25 (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 26 issue in the other litigation that some or all of the material covered by the subpoena or 27 order is subject to this Protective Order. Such notification shall include a copy of this 28 Stipulated Protective Order; and 14 STIPULATED PROTECTIVE ORDER 1 2 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.3 3 If the Designating Party timely seeks a protective order, the Party served with the 4 subpoena or court order shall not produce any information designated in this action as 5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 6 before a determination by the court from which the subpoena or order issued, unless the 7 Party has obtained the Designating Party’s permission. The Designating Party shall bear 8 the burden and expense of seeking protection in that court of its confidential material – 9 and nothing in these provisions should be construed as authorizing or encouraging a 10 Receiving Party in this action to disobey a lawful directive from another court. 11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 12 IN THIS LITIGATION 13 9.1 The terms of this Order are applicable to information produced by a Non- 14 Party in this action and designated as “CONFIDENTIAL” or “HIGHLY 15 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by Non- 16 Parties in connection with this litigation is protected by the remedies and relief provided 17 by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party 18 from seeking additional protections. 19 9.2 In the event that a Party is required, by a valid discovery request, to produce 20 a Non-Party’s confidential information in its possession, and the Party is subject to an 21 agreement with the Non-Party not to produce the Non-Party’s confidential information, 22 then the Party shall: 23 9.2.1 promptly notify in writing the Requesting Party and the Non-Party 24 that some or all of the information requested is subject to a confidentiality agreement 25 with a Non-Party; 26 27 28 3 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. 15 STIPULATED PROTECTIVE ORDER 1 9.2.2 promptly provide the Non-Party with a copy of the Stipulated 2 Protective Order in this litigation, the relevant discovery request(s), and a reasonably 3 specific description of the information requested; and 4 5 9.2.3 make the information requested available for inspection by the NonParty. 6 9.3 If the Non-Party fails to object or seek a protective order from this court 7 within 14 days of receiving the notice and accompanying information, the Receiving 8 Party may produce the Non-Party’s confidential information responsive to the discovery 9 request. If the Non-Party timely seeks a protective order, the Receiving Party shall not 10 produce any information in its possession or control that is subject to the confidentiality 11 agreement with the Non-Party before a determination by the court.4 Absent a court order 12 to the contrary, the Non-Party shall bear the burden and expense of seeking protection in 13 this court of its Protected Material. 14 10. 15 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 16 Protected Material to any person or in any circumstance not authorized under this 17 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 18 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 19 all unauthorized copies of the Protected Material, (c) inform the person or persons to 20 whom unauthorized disclosures were made of all the terms of this Order, and (d) request 21 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 22 that is attached hereto as Exhibit A. 23 // 24 // 25 // 26 27 28 4 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 16 STIPULATED PROTECTIVE ORDER 1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 2 PROTECTED MATERIAL 3 The production of privileged or protected material, whether inadvertent or 4 otherwise, is not a waiver of the privilege or protection from discovery in this case or in 5 any other federal or state proceeding. Regardless of the steps taken to prevent disclosure, 6 if a party produces information that it discovers, or in good faith later asserts, to be 7 privileged or otherwise protected from disclosure, the production of that information will 8 not constitute a waiver of any applicable privileges or other protection, and the Receiving 9 Party may not argue that the Producing Party failed to take reasonable steps to prevent 10 production of the privileged or protected materials. 11 In such circumstances, the Producing Party must notify in writing the Receiving 12 Party of the production and the basis for the privilege or other protection, and request in 13 writing the return or treatment of the produced privileged or protected information 14 consistent with Federal Rule of Civil Procedure 26(b)(5)(B). When a Producing Party 15 provides such notice, the obligations of the Receiving Parties are those set forth in 16 Federal Rule of Civil Procedure 26(b)(5)(B), and encompass all later created excerpts, 17 summaries, compilations, and other documents or records that include, communicate or 18 reveal the information claimed to be privileged or protected. 19 This Order shall be interpreted to provide the maximum protection allowed by 20 Federal Rule of Evidence 502(d). 21 12. 22 23 24 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this 25 Protective Order no Party waives any right it otherwise would have to object to disclosing 26 or producing any information or item on any ground not addressed in this Stipulated 27 Protective Order. Similarly, no Party waives any right to object on any ground to use in 28 evidence of any of the material covered by this Protective Order. 17 STIPULATED PROTECTIVE ORDER 1 12.3 Filing Protected Material. Without written permission from the Designating 2 Party or a court order secured after appropriate notice to all interested persons, a Party 3 may not file in the public record in this action any Protected Material. A Party that seeks 4 to file under seal any Protected Material must comply with Civil Local Rule 79-5. 5 Protected Material may only be filed under seal pursuant to a court order authorizing the 6 sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a 7 sealing order will issue only upon a request establishing that the Protected Material at 8 issue is privileged, protectable as a trade secret, or otherwise entitled to protection under 9 the law. If a Receiving Party's request to file Protected Material under seal pursuant to 10 Civil Local Rule 79-5.2 is denied by the court, then the Receiving Party may file the 11 Protected Material in the public record pursuant to Civil Local Rule 79-5.2 unless 12 otherwise instructed by the court. 13 13. 14 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, 15 each Receiving Party must return all Protected Material to the Producing Party or destroy 16 such material. As used in this subdivision, “all Protected Material” includes all copies, 17 abstracts, compilations, summaries, and any other format reproducing or capturing any of 18 the Protected Material. Whether the Protected Material is returned or destroyed, the 19 Receiving Party must submit a written certification to the Producing Party (and, if not the 20 same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies 21 (by category, where appropriate) all the Protected Material that was returned or destroyed 22 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 23 compilations, summaries or any other format reproducing or capturing any of the 24 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 25 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 26 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 27 work product, and consultant and expert work product, even if such materials contain 28 18 STIPULATED PROTECTIVE ORDER 1 Protected Material. Any such archival copies that contain or constitute Protected Material 2 remain subject to this Protective Order as set forth in Section 4 (DURATION). 3 14. EFFECTIVE UPON EXECUTION OF THE PARTIES 4 The Parties agree to be bound by the terms of this Stipulation pending the entry by 5 the Court of this Stipulation, and any violation of its terms shall be subject to the same 6 sanctions and penalties as if this Stipulation had been entered by the Court. 7 8 IT IS SO ORDERED. 9 10 DATED: September 15, 2017 Hon. Douglas F. McCormick U.S. Magistrate Judge 11 12 *Note change to page 11 made by the Court. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 STIPULATED PROTECTIVE ORDER 1 2 EXHIBIT A 3 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury that I 6 have read in its entirety and understand the Stipulated Protective Order that was issued by 7 the United States District Court for the Central District of California in the case of 8 Allergan, Inc.,, v. Dermavita Limited Partnership, Dima Corp. S.A., and KBC Media 9 Relations LLC, Case No. 8:17-cv-619-CJC (DFMx). I agree to comply with and to be 10 bound by all the terms of this Stipulated Protective Order and I understand and 11 acknowledge that failure to so comply could expose me to sanctions and punishment in 12 the nature of contempt. I solemnly promise that I will not disclose in any manner any 13 information or item that is subject to this Stipulated Protective Order to any person or 14 entity except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for 16 the Central District of California for the purpose of enforcing the terms of this Stipulated 17 Protective Order, even if such enforcement proceedings occur after termination of this 18 action. 19 Date: _______________ 20 City and State where sworn and signed: _________________________________ 21 22 23 24 Printed name: ______________________________ [printed name] Signature: __________________________________ [signature] 25 26 40957142v.1 27 28 20 STIPULATED PROTECTIVE ORDER

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