Spitz Technologies Corporation v. Nobel Biocare USA LLC et al

Filing 28

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 27 . (kh)

1 Jan P. Weir (Bar No. 106652)
[e-mail]
2 Kathrine J. Brandt (Bar No. 262740)
[e-mail]
3 MICHELMAN & ROBINSON, LLP
17901 Von Karman Avenue, Suite 1000
4 Irvine, CA 92614
Telephone: [phone]
5 Facsimile: [phone]
6 Attorneys for Plaintiff
SPITZ TECHNOLOGIES CORPORATION
7
John B. Sganga, Jr. (Bar No. 116211)
8 [e-mail]
Sheila N. Swaroop (Bar No. 203476)
9 [e-mail]
KNOBBE, MARTENS, OLSON & BEAR, LLP
10 2040 Main Street, Fourteenth Floor
Irvine, CA 92614
11 Telephone: [phone]
Facsimile: [phone]
12
Attorneys for Defendants
13 NOBEL BIOCARE USA LLC,
NOBEL BIOCARE SERVICES AG,
14 and NOBEL BIOCARE AB
15

IN THE UNITED STATES DISTRICT COURT

16
17
18

FOR THE CENTRAL DISTRICT OF CALIFORNIA
SPITZ TECHNOLOGIES
CORPORATION,

19

Plaintiff,

20
v.

21
22
23
24

NOBEL BIOCARE USA, LLC,
NOBEL BIOCARE SERVICES AG,
and NOBEL BIOCARE AB
Defendants.

25
26

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 8:17-cv-00660-JVS-JCG
Hon. James V. Selna
Magistrate Judge Jay C. Gandhi

STIPULATED PROTECTIVE
ORDER

AND RELATED COUNTER-ACTION )
)

27
28
209828

1
STIPULATED PROTECTIVE ORDERr

1

1.

A. PURPOSES AND LIMITATIONS

2

Discovery in this action is likely to involve production of confidential,

3

proprietary, or private information for which special protection from public

4

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

5

may be warranted. Accordingly, the parties hereby stipulate to and petition the

6

Court to enter the following Stipulated Protective Order. The parties

7

acknowledge that this Order does not confer blanket protections on all

8

disclosures or responses to discovery and that the protection it affords from

9

public disclosure and use extends only to the limited information or items that

10

are entitled to confidential treatment under the applicable legal principles. The

11

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

12

Stipulated Protective Order does not entitle them to file confidential information

13

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

14

followed and the standards that will be applied when a party seeks permission

15

from the court to file material under seal.

16

B. GOOD CAUSE STATEMENT

17

This action is likely to involve trade secrets, customer and pricing lists

18

and other valuable research, development, commercial, financial, technical

19

and/or proprietary information for which special protection from public

20

disclosure and from use for any purpose other than prosecution of this action is

21

warranted. Such confidential and proprietary materials and information consist

22

of, among other things, confidential business or financial information,

23

information regarding confidential business practices, or other confidential

24

research, development, or commercial information (including information

25

implicating privacy rights of third parties), information otherwise generally

26

unavailable to the public, and information the disclosure of which is likely to

27

cause harm to the competitive position of the entity from which the information

28

was obtained, or which may be privileged or otherwise protected from
209828

1

STIPULATED PROTECTIVE ORDER

1

disclosure under state or federal statutes, court rules, case decisions, or common

2

law. Accordingly, to expedite the flow of information, to facilitate the prompt

3

resolution of disputes over confidentiality of discovery materials, to adequately

4

protect information the parties are entitled to keep confidential, to ensure that

5

the parties are permitted reasonable necessary uses of such material in

6

preparation for and in the conduct of trial, to address their handling at the end of

7

the litigation, and serve the ends of justice, a protective order for such

8

information is justified in this matter. It is the intent of the parties that

9

information will not be designated as confidential for tactical reasons and that

10

nothing be so designated without a good faith belief that it has been maintained

11

in a confidential, non-public manner, and there is good cause why it should not

12

be part of the public record of this case.

13

2.

DEFINITIONS

14

2.1

Action: C.D. Cal. Case No. 8:17-cv-00660-JVX-JCG.

15

2.2

Challenging Party:

16

a Party or Non-Party that challenges the

designation of information or items under this Order.
2.3

17

“CONFIDENTIAL BUSINESS INFORMATION”: information

18

that has not been made public; information that includes trade secret or other

19

confidential research, development, or commercial information the disclosure of

20

which could cause harm to the business operations or the competitive

21

commercial position of the Designating Party or provide improper business or

22

commercial advantage to others; or information that is protected by a right of

23

privacy under federal or state law or any other applicable privilege or right

24

related to confidentiality or privacy.
2.4

25
26

as their support staff).
2.5

27
28

Counsel: Outside Counsel of Record and House Counsel (as well

Designating Party: a Party or Non-Party that designates

information or items that it produces in disclosures or in responses to discovery
209828

2

STIPULATED PROTECTIVE ORDER

1

as “CONFIDENTIAL BUSINESS INFORMATION.”

2

2.6

Disclosure or Discovery Material: all items or information,

3

regardless of the medium or manner in which it is generated, stored, or

4

maintained (including, among other things, testimony, transcripts, and tangible

5

things), that are produced or generated in disclosures or responses to discovery

6

in this matter.
2.7

7

Expert: a person with specialized knowledge or experience in a

8

matter pertinent to the litigation who has been retained by a Party or its counsel

9

to serve as an expert witness or as a consultant in this Action, and includes

10

support staff.
2.8

11

House Counsel: in-house attorneys who provide legal advice to a

12

party to this Action. House Counsel does not include Outside Counsel of Record

13

or any other outside counsel.
2.9

14
15

Non-Party:

any

natural

person,

partnership,

corporation,

association, or other legal entity not named as a Party to this action.

16

2.10 Outside Counsel of Record: attorneys who are not employees of a

17

party to this Action but are retained to represent or advise a party to this Action

18

and have appeared in this Action on behalf of that party or are affiliated with a

19

law firm which has appeared on behalf of that party, and includes support staff.

20

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

21

directors, employees, consultants, retained experts, and Outside Counsel of

22

Record (and their support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

23
24

Discovery Material in this Action.

25

2.13 Professional Vendors: persons or entities that provide litigation

26

support services (e.g., photocopying, videotaping, translating, preparing exhibits

27

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

28

medium) and their employees and subcontractors.
209828

3

STIPULATED PROTECTIVE ORDER

1
2

2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL BUSINESS INFORMATION.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery

3
4

Material from a Producing Party.

5

3.

SCOPE

6

The protections conferred by this Stipulation and Order cover not only

7

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

8

extracted from Protected Material; (2) all copies, excerpts, summaries, or

9

compilations of Protected Material; and (3) any testimony, conversations, or

10

presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of

11
12

the trial judge. This Order does not govern the use of Protected Material at trial.

13

4.

DURATION

14

Even after final disposition of this litigation, the confidentiality

15

obligations imposed by this Order shall remain in effect until a Designating

16

Party agrees otherwise in writing or a court order otherwise directs. Final

17

disposition shall be deemed to be the later of (1) dismissal of all claims and

18

defenses in this Action, with or without prejudice; and (2) final judgment herein

19

after the completion and exhaustion of all appeals, rehearings, remands, trials, or

20

reviews of this Action, including the time limits for filing any motions or

21

applications for extension of time pursuant to applicable law.

22

5.

DESIGNATING PROTECTED MATERIAL
5.1

23

Exercise of Restraint and Care in Designating Material for

24

Protection. Each Party or Non-Party that designates information or items for

25

protection under this Order must take care to limit any such designation to

26

specific material that qualifies under the appropriate standards. Mass,

27

indiscriminate, or routinized designations are prohibited.
If it comes to a Designating Party’s attention that information or items

28
209828

4

STIPULATED PROTECTIVE ORDER

1

that it designated for protection do not qualify for protection, the Designating

2

Party must promptly notify all other Parties that it is withdrawing the

3

inapplicable designation.

4

5.2

Manner and Timing of Designations. Except as otherwise provided

5

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

6

otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies

7

for protection under this Order must be clearly so designated before the material

8

is disclosed or produced.
Designation in conformity with this Order requires:

9

(a)

10

for information in documentary form (e.g., paper or electronic

11

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

12

proceedings), that the Producing Party affix at a minimum, the legend

13

“CONFIDENTIAL

14

“CONFIDENTIAL legend”), to each page that contains protected material.

BUSINESS

INFORMATION”

(hereinafter

15

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

16

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

17

has indicated which documents it would like copied and produced. During the

18

inspection and before the designation, all of the material made available for

19

inspection shall be deemed “CONFIDENTIAL BUSINESS INFORMATION.”

20

After the inspecting Party has identified the documents it wants copied

21

and produced, the Producing Party must determine which documents, or

22

portions thereof, qualify for protection under this Order. Then, before producing

23

the specified documents, the Producing Party must affix the “CONFIDENTIAL

24

legend” to each page that contains Protected Material.
(b)

25

for testimony given in depositions that the Designating Party

26

identify the Disclosure or Discovery Material on the record, before the close of

27

the deposition all protected testimony, or in writing within ten (10) days of

28

receipt of the deposition transcript.
209828

5

STIPULATED PROTECTIVE ORDER

1

(c)

for information produced in some form other than documentary and

2

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

3

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

4

the appropriate “CONFIDENTIAL legend.”

5

5.3

Inadvertent Failures to Designate. If timely corrected, an

6

inadvertent failure to designate qualified information or items does not, standing

7

alone, waive the Designating Party’s right to secure protection under this Order

8

for such material. Upon timely correction of a designation, the Receiving Party

9

must make reasonable efforts to assure that the material is treated in accordance

10

with the provisions of this Order.

11

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

12

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

13

designation of confidentiality at any time that is consistent with the Court’s

14

Scheduling Order.
6.2

15
16

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

17

The burden of persuasion in any such challenge proceeding shall be

18

on the Designating Party. Frivolous challenges, and those made for an improper

19

purpose (e.g., to harass or impose unnecessary expenses and burdens on other

20

parties) may expose the Challenging Party to sanctions. Unless the Designating

21

Party has waived or withdrawn the confidentiality designation, all parties shall

22

continue to afford the material in question the level of protection to which it is

23

entitled under the Producing Party’s designation until the Court rules on the

24

challenge.

25

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

26

Basic Principles. A Receiving Party may use Protected Material

27

that is disclosed or produced by another Party or by a Non-Party in connection

28

with this Action only for prosecuting, defending, or attempting to settle this
209828

6

STIPULATED PROTECTIVE ORDER

1

Action. Such Protected Material may be disclosed only to the categories of

2

persons and under the conditions described in this Order. When the Action has

3

been terminated, a Receiving Party must comply with the provisions of section

4

13 below (FINAL DISPOSITION).

5

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

6

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

7

persons authorized under this Order.

8

7.2

Disclosure of “CONFIDENTIAL BUSINESS INFORMATION”.

9

Unless otherwise ordered by the court or permitted in writing by the

10

Designating Party, a Receiving Party may disclose any information or item

11

designated “CONFIDENTIAL BUSINESS INFORMATION” only to:

12

(a)

the Receiving Party’s Counsel;

13

(b)

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

14

disclosure is reasonably necessary for this Action, in accordance with the

15

procedures outlined in Section 7.3 below;

16

(c)

the court and its personnel;

17

(d)

court reporters and their staff;

18

(e)

professional jury or trial consultants1, and Professional Vendors to

19

whom disclosure is reasonably necessary for this Action and who have signed

20

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

21

the author or recipient of a document containing the information or

22

a custodian or other person who has been shown to otherwise possess or know

23

the information; and

24
25
26
27
28

1

The Parties disagree regarding the disclosure of CONFIDENTIAL
BUSINESS INFORMATION to mock jurors at this time. The Parties agree to
revisit the issue of mock juror access to CONFIDENTIAL BUSINESS
INFORMATION at a later phase in the litigation and stipulate that agreement to
this joint protective order is without prejudice to, and does not waive, any
Party’s right to raise the issue of mock juror access to CONFIDENTIAL
BUSINESS INFORMATION at a later time.
209828

7

STIPULATED PROTECTIVE ORDER

1
2

(g)

any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.

3

7.3

Expert Disclosure Procedure. For any proposed expert witness or

4

consultant described in paragraph 7.2(b), the party retaining the expert witness

5

or consultant shall provide written notice at least ten (10) calendar days before

6

the disclosure to the proposed expert or consultant of any CONFIDENTIAL

7

BUSINESS INFORMATION of a Designating Party, including a signed copy

8

of the “Acknowledgment and Agreement to Be Bound” (Exhibit A) along with

9

the curriculum vitae of the expert witness or consultant, the expert witness or

10

consultant’s business address, business title, business or profession, the

11

existence of any previous or current relationship (personal or professional) with

12

any of the parties or their competitors, and all companies for which the expert

13

witness or consultant has consulted, advised, been employed by, or been a

14

member of any advisory or governing body for, within the last four years. The

15

Designating Party shall have ten (10) calendar days after such notice to serve an

16

objection in writing to such a disclosure. No CONFIDENTIAL BUSINESS

17

INFORMATION shall be disclosed until after the expiration of the ten (10)

18

calendar day notice period. Upon receipt of a written objection, the party

19

retaining the expert witness or consultant shall then have five (5) business days

20

to respond to the objection. If the parties cannot come to an agreement, within

21

ten (10) business days after the expiration of the five (5) day response period,

22

the Designating Party may file an objection with the Court and seek

23

disqualification of the expert witness or consultant or other appropriate relief.

24

Failure to file an objection with the Court within the prescribed period shall

25

constitute a waiver of any objection to the expert witness or consultant and

26

CONFIDENTIAL BUSINESS INFORMATION may be thereafter disclosed to

27

the expert witness or consultant.

28

///
209828

8

STIPULATED PROTECTIVE ORDER

1

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

2

PRODUCED IN OTHER LITIGATION

3

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

4

litigation that compels disclosure of any Protected Material, that Party must:
(a)

5
6

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;
(b)

7

promptly notify in writing the party who caused the subpoena or

8

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

9

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

10

include a copy of this Stipulated Protective Order; and
(c)

11
12

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

13

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

14

with the subpoena or court order shall not produce any Protected Material

15

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

16

unless the Party has obtained the Designating Party’s permission. The

17

Designating Party shall bear the burden and expense of seeking protection in

18

that court of its confidential material and nothing in these provisions should be

19

construed as authorizing or encouraging a Receiving Party in this Action to

20

disobey a lawful directive from another court.

21

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

22

PRODUCED IN THIS LITIGATION

23

(a)

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

24

Non-Party in this Action and designated as “CONFIDENTIAL BUSINESS

25

INFORMATION.” Such information produced by Non-Parties in connection

26

with this litigation is protected by the remedies and relief provided by this

27

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

28

Party from seeking additional protections.
209828

9

STIPULATED PROTECTIVE ORDER

1

(b)

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

2

produce a Non-Party’s confidential information in its possession, and the Party

3

is subject to an agreement with the Non-Party not to produce the Non-

4

Party’s confidential information, then the Party shall:

5

(1)

promptly notify in writing the Requesting Party and the Non-

6

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

7

agreement with a Non-Party;

8

(2)

9
10

promptly provide the Non-Party with a copy of the

Stipulated Protective Order in this Action, the relevant discovery request(s), and
a reasonably specific description of the information requested; and

11

(3)

12

the Non-Party, if requested.

13

(c)

make the information requested available for inspection by

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

14

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

15

Receiving Party may produce the Non-Party’s confidential information

16

responsive to the discovery request. If the Non-Party timely seeks a protective

17

order, the Receiving Party shall not produce any information in its possession or

18

control that is subject to the confidentiality agreement with the Non-Party before

19

a determination by the court. Absent a court order to the contrary, the Non-Party

20

shall bear the burden and expense of seeking protection in this court of its

21

Protected Material.

22

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

23

If a Receiving Party learns that, by inadvertence or otherwise, it has

24

disclosed Protected Material to any person or in any circumstance not

25

authorized under this Stipulated Protective Order, the Receiving Party must

26

immediately (a) notify in writing the Designating Party of the unauthorized

27

disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

28

Protected Material, (c) inform the person or persons to whom unauthorized
209828

10

STIPULATED PROTECTIVE ORDER

1

disclosures were made of all the terms of this Order, and (d) request such person

2

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

3

is attached hereto as Exhibit A.

4

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR

5

OTHERWISE PROTECTED MATERIAL

6

When a Producing Party gives notice to Receiving Parties that certain

7

inadvertently produced material is subject to a claim of privilege or other

8

protection, the obligations of the Receiving Parties are those set forth in Federal

9

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

10

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

11

production without prior privilege review. Pursuant to Federal Rule of Evidence

12

502(d) and (e), insofar as the parties reach an agreement on the effect of

13

disclosure of a communication or information covered by the attorney-client

14

privilege or work product protection, the parties may incorporate their

15

agreement in the stipulated protective order submitted to the court.

16

12.

12.1 Right to Further Relief. Nothing in this Order abridges the right of

17
18

MISCELLANEOUS

any person to seek its modification by the Court in the future.

19

12.2 Right to Assert Other Objections. By stipulating to the entry of this

20

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

21

disclosing or producing any information or item on any ground not addressed in

22

this Stipulated Protective Order. Similarly, no Party waives any right to object

23

on any ground to use in evidence of any of the material covered by this

24

Protective Order.

25

12.3 Filing Protected Material. A Party that seeks to file under seal any

26

Protected Material must comply with Civil Local Rule 79-5. Protected Material

27

may only be filed under seal pursuant to a court order authorizing the sealing of

28

the specific Protected Material at issue. If a Party's request to file Protected
209828

11

STIPULATED PROTECTIVE ORDER

1

Material under seal is denied by the court, then the Receiving Party may file the

2

information in the public record unless otherwise instructed by the court.

3

13.

FINAL DISPOSITION

4

After the final disposition of this Action, as defined in paragraph 4, within

5

60 days of a written request by the Designating Party, each Receiving Party

6

must return all Protected Material to the Producing Party or destroy such

7

material. As used in this subdivision, “all Protected Material” includes all

8

copies, abstracts, compilations, summaries, and any other format reproducing or

9

capturing any of the Protected Material. Whether the Protected Material is

10

returned or destroyed, the Receiving Party must submit a written certification to

11

the Producing Party (and, if not the same person or entity, to the Designating

12

Party) by the 60 day deadline that (1) identifies (by category, where appropriate)

13

all the Protected Material that was returned or destroyed and (2)affirms that the

14

Receiving Party has not retained any copies, abstracts, compilations, summaries

15

or any other format reproducing or capturing any of the Protected Material.

16

Notwithstanding this provision, Counsel are entitled to retain an archival copy

17

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

18

memoranda, correspondence, deposition and trial exhibits, expert reports,

19

attorney work product, and consultant and expert work product, even if such

20

materials contain Protected Material. Any such archival copies that contain or

21

constitute Protected Material remain subject to this Protective Order as set forth

22

in Section 4 (DURATION).

23

14.

VIOLATION

24

Any violation of this Order may be punished by any and all appropriate

25

measures including, without limitation, contempt proceedings and/or monetary

26

sanctions.

27

///

28

///
209828

12

STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

3

, of

, declare

4

under penalty of perjury that I have read in its entirety and understand the

5

Stipulated Protective Order that was issued by the United States District Court

6

for the Central District of California on

7

Technologies Corp., v. Nobel Biocare USA LLC et al., Case No. 8:17-cv-00660-

8

JVS-JCG. I agree to comply with and to be bound by all the terms of this

9

Stipulated Protective Order and I understand and acknowledge that failure to so

10

comply could expose me to sanctions and punishment in the nature of contempt.

11

I solemnly promise that I will not disclose in any manner any information or

12

item that is subject to this Stipulated Protective Order to any person or entity

13

except in strict compliance with the provisions of this Order.

in

the

case

of

Spitz

14

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

15

Court for the Central District of California for the purpose of enforcing the

16

terms of this Stipulated Protective Order, even if such enforcement proceedings

17

occur after termination of this action. I hereby appoint
of

18

as my California agent for service

19

of process in connection with this action or any proceedings related to

20

enforcement of this Stipulated Protective Order.

21
22

Date:

23

City and State where sworn and signed:

24

Printed name:

25

Signature:

26
27
28
209828

14

STIPULATED PROTECTIVE ORDER