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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NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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ALLERGAN, INC,

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Plaintiff,

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v.
DERMAVITA LIMITED PARTNERSHIP,
DIMA CORP. S.A., and
KBC MEDIA RELATIONS LLC,

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Case No. 8:17-cv-00619-CJC (DFMx)
[PROPOSED] PROTECTIVE
ORDER PURSUANT TO
STIPULATION
[Discovery Document:
Referred to Magistrate Judge
Douglas F. McCormick]

Defendants.

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Pursuant to the Parties’ Stipulation, and good cause appearing therefor, it is hereby

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ORDERED that all parties to this action and their counsel comply with the following

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protective order:

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STIPULATED PROTECTIVE ORDER

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be

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warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does not

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confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information under

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seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the court to file

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material under seal.

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1.1

GOOD CAUSE STATEMENT1: The Court may only enter a protective

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order upon a showing of good cause. See, e.g., Kamakana v. City and Cnty. of Honolulu,

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447 F.3d 1172, 1176 (9th Cir. 2006) (holding that parties must make a “particularized

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showing” under Rule 26(c) for court to enter protective order). Stipulated protective

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orders still require a showing of good cause. See, e.g., Makar-Wellbon v. Sony Elecs.,

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Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999). Here, good cause exists to enter the parties

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stipulated protective order for the following reasons:


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Allergan is a publicly-traded, Fortune 100 pharmaceutical company with

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valuable intellectual property, including its JUVEDERM® trademarks at

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issue in this dispute. The Parties anticipate that discovery may require the

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disclosure of confidential, proprietary and trade secret information (such as

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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.
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STIPULATED PROTECTIVE ORDER

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proprietary market research and information about products not yet publicly

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available; see Section 2.7, below) about current products and, potentially,

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products under development and not yet released to the public, the public

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disclosure of which would cause a substantial risk of serious harm to the

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Parties, their businesses and their owners/shareholders;
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Allergan contends that, through the press release pled in the Complaint

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[Compl., Ex. C, Dkt. 1-3], defendant Dima Corp., S.A. (“Dima”) announced

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its intention to launch cosmetics and cosmeceutical products in the U.S. and

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abroad under the mark “Juvederm,” under a license with defendant

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Dermavita Limited Partnership (“Dermavita”). Allergan currently

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manufactures, markets and sells an injectable dermal filler under its

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registered JUVEDERM® trademark. [Compl., Ex. A, Dkt. 1-1.] Allergan

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alleges that Dermavita and Dima both make and market products called

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“Juvederm” abroad as well. As alleged in the Complaint, because Dima,

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Dermavita and Allergan are poised to be direct competitors in the U.S. and

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are already direct competitors globally, the disclosure of confidential,

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proprietary and trade secret information during the discovery process could

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risk creating a competitive advantage/disadvantage and causing a substantial

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risk of serious harm.

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Protective orders are frequently issued in circumstances like these where direct

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competitors are involved in a dispute over intellectual property. See, e.e., Unilin Beheer

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B.V. v. NSL Trading Corp., No. CV 14-2210 BRO (SSX), 2015 WL 12659918, at *3

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(C.D. Cal. Jan. 8, 2015) (“Protective orders are a common feature of patent cases because

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the parties are often competitors who understandably are reluctant to disclose trade

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secrets and other confidential information to each other (and to the public).”) (citing

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Northbrook Digital, LLC v. Vendio Services, Inc., 625 F. Supp. 2d 728, 734 (D. Minn.

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2008)).

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//
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STIPULATED PROTECTIVE ORDER

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Accordingly, for similar reasons here, the parties respectfully request that the
Court enter their stipulated protective order set forth herein.

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1.2

Form of Stipulation: The parties have based this Stipualted Protective Order

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on the Model Protective Order for Litigation Involving Patents, Highly Sensitive

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Confidential Information and/or Trade Secrets of the U.S. District Court for the N.D.

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Cal., available at: http://www.cand.uscourts.gov/model-protective-orders.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.

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2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it

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is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26©.

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel

(as well as their support staff).

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2.4

Designating Party: a Party or Non-Party that designates information or items

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that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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2.5

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among

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other things, testimony, transcripts, and tangible things), that are produced or generated in

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disclosures or responses to discovery in this matter.

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2.6

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this action, (2) is not a past or current employee of

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a Party or of a Party’s competitor, and (3) at the time of retention, is not anticipated to

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become an employee of a Party or of a Party’s competitor.

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//

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//
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STIPULATED PROTECTIVE ORDER

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information

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or Items: extremely sensitive “CONFIDENTIAL” information or items,” disclosure of

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which to another Party or Non-Party would create a substantial risk of serious harm that

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could not be avoided by less restrictive means, specifically: (a) any documents relating

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to pricing, cost and other financial or marketing information; (b) business plans and

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competitive strategies; (c) proprietary market research; (d) patent applications; and (e)

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information concerning products currently under development for which an ANDA,

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NDA, or supplemental NDA has not been approved, in each case (a), (b), (c), (d) and (e),

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to the extent such information is not publicly available. The Parties reserve their rights to

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amend this list of documents that qualify for “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY” protection based on further discovery.

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2.8

House Counsel: attorneys who are employees of a party to this action or a

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parent, subsidiary, sister or affiliate company of a party to this action. House Counsel

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does not include Outside Counsel of Record or any other outside counsel.

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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

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this action but are retained to represent or advise a party to this action and have appeared

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in this action on behalf of that party or are affiliated with a law firm which has appeared

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on behalf of that party.

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2.11 Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, House Counsel and Outside Counsel of Record

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(and their support staffs).

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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

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STIPULATED PROTECTIVE ORDER

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demonstrations, and organizing, storing, or retrieving data in any form or medium) and

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their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is designated

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as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from

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a Producing Party.

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3.

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SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. However, the protections conferred by this

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Stipulation and Order do not cover the following information: (a) any information that is

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in the public domain at the time of disclosure to a Receiving Party or becomes part of the

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public domain after its disclosure to a Receiving Party as a result of publication not

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involving a violation of this Order, including becoming part of the public record through

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trial or otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under no obligation of confidentiality to the

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Designating Party. Any use of Protected Material at trial shall be governed by a separate

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agreement or order.

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4.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees otherwise in

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writing or a court order otherwise directs. Final disposition shall be deemed to be the later

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of (1) dismissal of all claims and defenses in this action, with or without prejudice; and

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(2) final judgment herein after the completion and exhaustion of all appeals, rehearings,
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STIPULATED PROTECTIVE ORDER

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remands, trials, or reviews of this action, including the time limits for filing any motions

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or applications for extension of time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or Non-Party that designates information or items for protection under this Order

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must take care to limit any such designation to specific material that qualifies under the

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appropriate standards. To the extent it is practical to do so, the Designating Party must

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designate for protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents, items, or

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communications for which protection is not warranted are not swept unjustifiably within

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the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber or retard the case development process or to impose

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unnecessary expenses and burdens on other parties) expose the Designating Party to

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sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection at all or do not qualify for the level

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of protection initially asserted, that Designating Party must promptly notify all other

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parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial proceedings),

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that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY
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STIPULATED PROTECTIVE ORDER

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains protected

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material. If only a portion or portions of the material on a page qualifies for protection,

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the Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins) and must specify, for each portion, the level of

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protection being asserted. If a document is produced in native format such that the

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addition of a legend on each page is not appropriate or applicable, the confidentiality

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legend should be included in the file name (e.g., PTY_0001-CONFIDENTIAL).

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be deemed

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting

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Party has identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must affix

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the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party

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also must clearly identify the protected portion(s) (e.g., by making appropriate markings

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in the margins) and must specify, for each portion, the level of protection being asserted.

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(b) for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony and specify the level of protection

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being asserted. When it is impractical to identify separately each portion of testimony that

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is entitled to protection and it appears that substantial portions of the testimony may

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qualify for protection, the Designating Party may invoke on the record (before the

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deposition, hearing, or other proceeding is concluded) a right to have up to 21 days from

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the date the transcript is prepared and delivered to the Designating Party to identify the
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STIPULATED PROTECTIVE ORDER

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specific portions of the testimony as to which protection is sought and to specify the level

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of protection being asserted. Only those portions of the testimony that are appropriately

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designated for protection within the 21 days shall be covered by the provisions of this

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Stipulated Protective Order. Alternatively, a Designating Party may specify, at the

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deposition or up to 21 days afterwards if that period is properly invoked, that the entire

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transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” If the Designating Party properly invokes the 21 day

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period to designate testimony for protection, then all of the testimony for that deposition,

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hearing or other proceeding shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” during the 21 day period.

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Parties shall give the other parties notice if they reasonably expect a deposition,

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hearing or other proceeding to include Protected Material so that the other parties can

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ensure that only authorized individuals who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a

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document as an exhibit at a deposition shall not in any way affect its designation as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the title

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page that the transcript contains Protected Material, and the title page shall be followed

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by a list of all pages (including line numbers as appropriate) that have been designated as

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Protected Material and the level of protection being asserted by the Designating Party.

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The Designating Party shall inform the court reporter of these requirements. After the

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expiration of that period, the transcript shall be treated only as actually designated.

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(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” If only a portion or portions of the information or item warrant protection, the

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STIPULATED PROTECTIVE ORDER

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Producing Party, to the extent practicable, shall identify the protected portion(s) and

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specify the level of protection being asserted.

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material. Upon

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timely correction of a designation, the Receiving Party must make reasonable efforts to

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assure that the material is treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation

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of confidentiality at any time. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a

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Party does not waive its right to challenge a confidentiality designation by electing not to

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mount a challenge promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing

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the basis for each challenge. To avoid ambiguity as to whether a challenge has been

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made, the written notice must recite that the challenge to confidentiality is being made in

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accordance with this specific paragraph of the Protective Order. The parties shall attempt

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to resolve each challenge in good faith and must begin the process by conferring directly

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(in voice to voice dialogue; other forms of communication are not sufficient) within 14

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days of the date of service of notice. In conferring, the Challenging Party must explain

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the basis for its belief that the confidentiality designation was not proper and must give

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the Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the

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chosen designation. A Challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet and confer process first or establishes that the

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STIPULATED PROTECTIVE ORDER

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Designating Party is unwilling to participate in the meet and confer process in a timely

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manner.

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6.3

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Judicial Intervention.
6.3.1 Informal Resolution: If the Parties cannot resolve a challenge without

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court intervention, and if both parties agree, the Designating Party shall request an

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informal telephonic conference with Magistrate Judge McCormick as set forth in Judge

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McCormick’s Procedure No. 3. Only if the parties are unable to reach an agreement to

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proceed with an informal conference, or if the informal conference fails to resolve the

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dispute, can the Designating Party proceed with the process set forth in section 6.3.2,

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below:
6.3.2 Formal Resolution: If the Parties are unable to resolve their

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disagreement informally with the help of Magistrate Judge McCormick, the Designating

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Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 and

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37 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the

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initial notice of challenge or within 14 days of the parties agreeing that the meet and

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confer process will not resolve their dispute, whichever is earlier. Each such motion must

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be accompanied by a competent declaration affirming that the movant has complied with

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the meet and confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration within 21

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days (or 14 days, if applicable) shall automatically waive the confidentiality designation

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for each challenged designation.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to

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harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived the

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confidentiality designation by failing to file a motion to retain confidentiality as described

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above, all parties shall continue to afford the material in question the level of protection

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STIPULATED PROTECTIVE ORDER

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to which it is entitled under the Producing Party’s designation until the court rules on the

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challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this case

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only for prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. When the litigation has been terminated, a Receiving Party must

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comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner2 that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation;

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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2

It may be appropriate under certain circumstances to require the Receiving Party to
store any electronic Protected Material in password-protected form.
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STIPULATED PROTECTIVE ORDER

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(f) professional jury or trial consultants, and Professional Vendors to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(g) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the

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court. Pages of transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material must be identified by the court reporter with the appropriate

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confidentiality designation and legend pursuant to this Order and may not be disclosed to

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anyone except as permitted under this Stipulated Protective Order.

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(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

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ONLY” Information or Items. Unless otherwise ordered by the court or permitted in

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writing by the Designating Party, a Receiving Party may disclose any information or item

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation;

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(b) House Counsel of the Receiving Party to whom disclosure is reasonably

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necessary for this litigation and who has signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A).

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(c) Experts of the Receiving Party to whom disclosure is reasonably

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necessary for this litigation, and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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STIPULATED PROTECTIVE ORDER

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(f) professional jury or trial consultants (including mock jurors), and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.

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In the event that counsel for a party believes it necessary to disclose any

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information designed “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” to

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any person not permitted under this Stipulated Protective Order, said counsel shall notify

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counsel for the Producing Party in writing identifying (a) the specific information,

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documents, or testimony proposed to be disclosed; (b) the person(s) to whom such

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disclosure is proposed to be made; and (c) a short summary explaining the need to

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disclose the Protected Information to the identified person(s). If an agreement cannot be

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reached, the party desiring to disclose “HIGHLY CONFIDENTIAL - ATTORNEYS’

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EYES ONLY” information may not disclose such information but may make an

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appropriate motion and shall bear the burden of showing that the proposed disclosure is

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necessary.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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that Party must:

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(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

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

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order is subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and
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STIPULATED PROTECTIVE ORDER

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(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.3

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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before a determination by the court from which the subpoena or order issued, unless the

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Party has obtained the Designating Party’s permission. The Designating Party shall bear

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

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and nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this action to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

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IN THIS LITIGATION

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9.1

The terms of this Order are applicable to information produced by a Non-

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Party in this action and designated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided

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by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party

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from seeking additional protections.

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9.2

In the event that a Party is required, by a valid discovery request, to produce

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a Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information,

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then the Party shall:

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9.2.1 promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;

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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.
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STIPULATED PROTECTIVE ORDER

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9.2.2 promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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9.2.3 make the information requested available for inspection by the NonParty.

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9.3

If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving

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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

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produce any information in its possession or control that is subject to the confidentiality

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agreement with the Non-Party before a determination by the court.4 Absent a court order

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to the contrary, the Non-Party shall bear the burden and expense of seeking protection in

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this court of its Protected Material.

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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request

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such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

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that is attached hereto as Exhibit A.

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//

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//

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//

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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.
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STIPULATED PROTECTIVE ORDER

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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The production of privileged or protected material, whether inadvertent or

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otherwise, is not a waiver of the privilege or protection from discovery in this case or in

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any other federal or state proceeding. Regardless of the steps taken to prevent disclosure,

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if a party produces information that it discovers, or in good faith later asserts, to be

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privileged or otherwise protected from disclosure, the production of that information will

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not constitute a waiver of any applicable privileges or other protection, and the Receiving

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Party may not argue that the Producing Party failed to take reasonable steps to prevent

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production of the privileged or protected materials.

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In such circumstances, the Producing Party must notify in writing the Receiving

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Party of the production and the basis for the privilege or other protection, and request in

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writing the return or treatment of the produced privileged or protected information

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consistent with Federal Rule of Civil Procedure 26(b)(5)(B). When a Producing Party

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provides such notice, the obligations of the Receiving Parties are those set forth in

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Federal Rule of Civil Procedure 26(b)(5)(B), and encompass all later created excerpts,

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summaries, compilations, and other documents or records that include, communicate or

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reveal the information claimed to be privileged or protected.

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This Order shall be interpreted to provide the maximum protection allowed by

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Federal Rule of Evidence 502(d).

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12.

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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

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Protective Order no Party waives any right it otherwise would have to object to disclosing

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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

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evidence of any of the material covered by this Protective Order.
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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

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Civil Local Rule 79-5.2 is denied by the court, then the Receiving Party may file the

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Protected Material in the public record pursuant to Civil Local Rule 79-5.2 unless

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otherwise instructed by the court.

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13.

14

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4,

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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

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(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

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12

*Note change to page 11 made by the Court.

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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: _______________

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City and State where sworn and signed: _________________________________

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24

Printed name: ______________________________
[printed name]
Signature: __________________________________
[signature]

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40957142v.1

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STIPULATED PROTECTIVE ORDER