Alma Fidela Cercas et al v. Ambry Genetics Corp.
Filing
60
STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott re Stipulation for Protective Order. 59 (es)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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Case No. 8:20-cv-00791 CJC (KESx)
In Re: Ambry Genetics Data Breach
Litigation
STIPULATED PROTECTIVE
ORDER
This Documents Relates To: All
Cases
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A.
PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
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proprietary, or private information for which special protection from public disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted.
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Moreover, the information likely to be the subject of disclosures and discovery involves
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unique risks related to privacy, data security, and data management that will likely be
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greater than in most cases. Accordingly, the parties hereby stipulate to and petition the
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Court to enter the following Stipulated Protective Order. The parties acknowledge that
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this Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends only
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to the limited information or items that are entitled to confidential treatment under the
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applicable legal principles. The parties further acknowledge, as set forth in Section 12.3,
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below, that this Stipulated Protective Order does not entitle them to file confidential
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information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
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followed and the standards that will be applied when a party seeks permission from the
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court to file material under seal.
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B.
GOOD CAUSE STATEMENT
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This action is likely to involve personally identifying information, protected
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health information, data security information, trade secrets, other valuable research,
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development, commercial, financial, technical and/or proprietary information for which
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special protection from public disclosure and from use for any purpose other than
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prosecution of this action is warranted. Such confidential and proprietary materials and
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information are not otherwise generally available to the public, and may be privileged
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or otherwise protected from disclosure under state or federal statutes, court rules, case
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decisions, or common law. Accordingly, to expedite the flow of information, to
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facilitate the prompt resolution of disputes over confidentiality of discovery materials,
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to adequately protect information the parties are entitled to keep confidential, to ensure
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that the parties are permitted reasonable necessary uses of such material in preparation
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for and in the conduct of trial, to address their handling at the end of the litigation, and
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serve the ends of justice, a protective order for such information is justified in this
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matter. It is the intent of the parties that information will not be designated as
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confidential for tactical reasons and that nothing be so designated without a good faith
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belief that it has been maintained in a confidential, non-public manner, and there is good
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cause why it should not be part of the public record of this case.
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C.
DEFINITIONS
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1.
Action: this pending federal lawsuit and all consolidated or related actions.
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2.
Challenging Party: a Party or Non-Party that challenges the designation of
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information or items under this Order.
3.
“CONFIDENTIAL” Information or Items: information (regardless of how
it is generated, stored or maintained) or tangible things that qualify for protection under
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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
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Statement.
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4.
“CONFIDENTIAL HEALTH INFORMATION”: information (regardless
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of how it is generated, stored or maintained) that a Party (or Parties) determine might
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contain
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INFORMATION is also intended to encompass any individual health information
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protected by state or federal law, including, but not limited to, Protected Health
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Information as defined below.
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sensitive
a.
personal
health
information.
CONFIDENTIAL
HEALTH
Protected Health Information: Protected Health Information, as used
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herein, has the same scope and definition as set forth in 45 C.F.R. § 160.103. Without
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limiting the generality of the foregoing, Protected Health Information includes, but is
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not limited to, health information, including demographic information, relating to the
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past, present, or future physical or mental health or condition of an individual; the
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provision of health care to an individual; or the past, present, or future payment for the
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provision of health care to an individual, which identifies or reasonably could be
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expected to identify the individual. It also includes, but is not limited to, medical bills,
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claims forms, charges sheets, medical records, medical charts, genetic information, test
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results, notes, dictation, invoices, itemized billing statements, remittance advice forms,
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explanation of benefits, checks, notices, and requests, and includes all notes,
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summaries, compilations, extracts, abstracts, or oral communications that are based on
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or derived from Protected Health Information, regardless of form or format. Protected
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Health Information also includes information that contains the following identifiers of
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an individual or of a relative, employer, or household member of an individual, to the
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extent it is linked to Protected Health Information as defined in 45 C.F.R. § 160.103:
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i.
names;
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ii.
all geographic subdivisions smaller than a State, including
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street address, city, county, precinct, and zip code;
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iii.
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all elements of dates (except year) for dates directly related to
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an individual, including birth date, admission date, discharge date, age, and date of
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death;
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iv.
telephone numbers;
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v.
fax numbers;
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vi.
electronic mail addresses;
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vii.
social security numbers;
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viii.
medical record numbers;
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ix.
health plan beneficiary numbers;
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x.
account numbers;
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xi.
certificate/license numbers;
xii.
vehicle identifiers and serial numbers, including license plate
xiii.
device identifiers and serial numbers;
xiv.
web universal resource locators (“URLs”);
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internet protocol (“IP”) address numbers;
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biometric identifiers, including finger and voice prints;
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full face photographic images and any comparable images;
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any other unique identifying number, characteristic, or code;
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any other information that the Producing Party knows could
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numbers;
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and
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be used alone or in combination with other information to identify the individual who
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is the subject of the information.
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5.
Counsel (without any qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
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Designating Party: a Party or Non-Party that designates information or
items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”
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or
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“CONFIDENTIAL HEALTH INFORMATION.”
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“HIGHLY
7.
CONFIDENTIAL
–
ATTORNEYS’
EYES
ONLY”
or
Disclosure or Discovery Material: all items or information, regardless of
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the 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
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in disclosures or responses to discovery in this matter.
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8.
Expert: a person with specialized knowledge or experience in a matter
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pertinent to the litigation who has been retained by a Party or its counsel to serve as an
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expert witness or as a consultant in this Action.
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9.
“HIGHLY
CONFIDENTIAL
–
ATTORNEYS’
EYES
ONLY”:
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Extremely sensitive “Confidential Information or Items,” the disclosure of which to
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another Party or Non-Party would create substantial risk of serious harm that could not
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be avoided by less restrictive means, including, but not limited to, highly sensitive and
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competitive technical information related to a Party’s, or a Party’s parent’s, subsidiary’s
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or affiliate’s, information security and management.
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10.
House Counsel: attorneys who are employees of a party to this Action.
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House Counsel does not include Outside Counsel of Record or any other outside
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counsel.
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11.
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
12.
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
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appeared in this Action on behalf of that party or are affiliated with a law firm which
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has appeared on behalf of that party, and includes support staff.
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13.
Party: any party to this Action, including all of its officers, directors,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
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14.
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PII: Personally Identifiable Information, which, for purposes of this Order,
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includes, but is not limited to payment card numbers, financial account numbers, social
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security numbers, addresses, phone numbers, e-mail addresses, driver’s license
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numbers or other state identification numbers, employer identification numbers, tax
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identification numbers, passport numbers, or a foreign government equivalent of any of
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these numbers or identifiers, or other personal financial information pertaining to an
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individual that is not directly relevant to the claims or defenses in this lawsuit. PII
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qualifies for protection as Confidential Information within the meaning of this Order,
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at a minimum.
15.
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Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
16.
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Professional Vendors: persons or entities that provide litigation support
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services (e.g., photocopying, videotaping, translating, preparing exhibits or
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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.
17.
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Protected Material: any Disclosure or Discovery Material that is
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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
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EYES ONLY” or “CONFIDENTIAL HEALTH INFORMATION.”
18.
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Receiving Party: a Party that receives, either directly, indirectly, or through
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counsel, Disclosure or Discovery Material from a Producing Party.
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D.
SCOPE
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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 hard and electronic copies, excerpts, derivations, summaries,
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or compilations of Protected Material; and (3) any testimony, conversations, or
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presentations by Parties or their Counsel that might reveal Protected Material. However,
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the protections conferred by this Order do not cover the following information: (a) any
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information that is in the public domain at the time of disclosure to a Receiving Party,
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excluding any information that came into the public domain as a result of a violation of
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law or of this Order; and (b) any information that becomes part of the public domain
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after its disclosure to a Receiving Party as a result of publication not involving a
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violation of this Order, including becoming part of the public record through trial or
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otherwise. Notwithstanding the foregoing, any information that meets the definition of
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“CONFIDENTIAL HEALTH INFORMATION” or “PII” shall under no circumstances
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lose the protection afforded to it under this Order on the basis that the information is in
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the public domain. Any use of Protected Material at trial shall be governed by the orders
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of the trial judge, or as otherwise agreed to by the Parties. This Order does not govern
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the use of Protected Material at trial.
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E.
DURATION
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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
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in writing or a court order otherwise directs. Final disposition shall be deemed to be the
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later of (1) dismissal of all claims and defenses in this action, with or without prejudice;
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and (2) final judgment herein after the completion and exhaustion of all appeals,
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rehearings, remands, trials, or reviews of this action, including the time limits for filing
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any motions or applications for extension of time pursuant to applicable law.
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F.
ADDITIONAL SAFEGUARDS CONFIDENTIAL HEALTH
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INFORMATION AND PII
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The Parties also seek to ensure that any person who receives and stores
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CONFIDENTIAL HEALTH INFORMATION or PII in connection with this
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Proceeding will develop, implement, maintain, and use appropriate administrative,
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technical, and physical safeguards to preserve the privacy, integrity, and confidentiality
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of any CONFIDENTIAL HEALTH INFORMATION and PII, and to prevent
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unpermitted use or disclosure of any CONFIDENTIAL HEALTH INFORMATION or
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PII they may receive from any person in connection with this Proceeding. Accordingly,
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to the extent practicable within the time constraints for producing discovery, the
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Producing Party should inform the Receiving Party that it will be producing categories
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of documents that may contain CONFIDENTIAL HEALTH INFORMATION or PII
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and the nature of that information in advance of the production, so that the Receiving
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Party can determine whether receipt of that CONFIDENTIAL HEALTH
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INFORMATION or PII is necessary, and be prepared to receive it, and so that the
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Parties can meet and confer to discuss next steps as needed. CONFIDENTIAL
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HEALTH INFORMATION and PII will be securely returned or destroyed pursuant to
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the provisions of Section 13 below.
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CONFIDENTIAL HEALTH INFORMATION and PII does not include any
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document or information in which the Producing Party has redacted the identifiers listed
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above and does not have actual knowledge that the information could be used alone or
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in combination with other information to identify an individual who is the subject of the
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information. A Producing Party may, but is not required to, perform such redactions
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before producing documents that originally contained CONFIDENTIAL HEALTH
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INFORMATION or PII so long as the redactions do not result in prejudice to another
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Party. Under no circumstances are block redactions permitted—any redactions of
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Confidential Health Information or PII must solely redact the unique identifiers listed
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above. Any such redacted document or information may nevertheless be Protected
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Material under other terms of this Order. To the extent a Producing Party produces a
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document reflecting the Confidential Health Information or PII of a Receiving Party,
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such information shall not be redacted.
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G.
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DESIGNATING PROTECTED MATERIAL
1.
Exercise of Restraint and Care in Designating Material for Protection.
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Each Party or Non-Party that designates information or items for protection under this
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Order must take care to limit any such designation to specific material that qualifies
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under the appropriate standards. To the extent it is practical to do so, the Designating
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Party must designate for protection only those parts of material, documents, items, or
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oral or written communications that qualify – so that other portions of the material,
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documents, items, or communications for which protection is not warranted are not
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swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited, unless agreed
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upon by the Parties. Designations that are shown to be clearly unjustified or that have
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been made for an improper purpose (e.g., to unnecessarily encumber or hinder the case
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development process or to impose unnecessary expenses and burdens on other parties)
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expose the Designating Party to 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, that Designating Party must
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promptly notify all other Parties that it is withdrawing the mistaken designation.
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2.
Manner and Timing of Designations. Except as otherwise provided in this
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Order (see, e.g., second paragraph of section 6.2(a) below), or as otherwise stipulated
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or ordered, Disclosure or Discovery Material that qualifies for protection under this
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Order 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
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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL
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HEALTH INFORMATION” (hereinafter “CONFIDENTIAL legend”), to each page
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that contains protected material. If only a portion or portions of the material on a page
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qualifies for protection, the Producing Party also must clearly identify the protected
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portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
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each portion, the level of protection being asserted.
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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” and “CONFIDENTIAL
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HEALTH INFORMATION.” After the inspecting Party has identified the documents
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it wants copied and produced, the Producing Party must determine which documents,
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or portions thereof, qualify for protection under this Order. Then, before producing the
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specified documents, the Producing Party must affix the appropriate legend
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(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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ONLY” or “CONFIDENTIAL HEALTH INFORMATION”) to each page that contains
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Protected Material. If only a portion or portions of the material on a page qualifies for
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protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
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by making appropriate markings in the margins and must specify, for each portion, the
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level of protection being asserted).
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b.
for testimony given in deposition or in other pretrial or trial
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proceedings, that the Designating Party identify on the record, before the close of the
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deposition, hearing, or other proceeding, all protected testimony and the level of
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protection being asserted. When it is impractical to identify separately each portion of
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testimony that is entitled to protection and it appears that substantial portions of the
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testimony may qualify for protection, the Designating Party may invoke on the record
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(before the deposition, hearing, or other proceeding is concluded) a right to have up to
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21 days to identify the specific portions of the testimony as to which protection is sought
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and to specify the level of protection being asserted. Only those portions of the
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testimony that are appropriately designated for protection within the 21 days shall be
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covered by the provisions of this Order. Alternatively, a Designating Party may specify,
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at the deposition or up to 21 days afterwards if that period is properly invoked, that the
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entire
transcript
shall
be
treated
as
“CONFIDENTIAL”
or
“HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL HEALTH
3
INFORMATION.”
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A Party shall give the other Parties notice if it reasonably expects a deposition,
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hearing or other proceeding to include Protected Material so that all Parties can ensure
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that only authorized individuals who have signed the “Acknowledgment and Agreement
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to Be Bound” (Exhibit A) are present at those proceedings, excepting from such
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signature requirement a Party’s insurer representative. The use of a document as an
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exhibit at a deposition shall not in any way affect its designation as “CONFIDENTIAL”
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or
“HIGHLY
CONFIDENTIAL
–
ATTORNEYS’
11
EYES
ONLY”
or
“CONFIDENTIAL HEALTH INFORMATION.”
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Transcripts containing Protected Material shall have an obvious legend on the
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title page that the transcript contains Protected Material, and the title page shall be
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followed by a list of all pages (including line numbers as appropriate) that have been
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designated as Protected Material and the level of protection being asserted by the
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Designating Party. The Designating Party shall inform the court reporter of these
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requirements. Any transcript that is prepared before the expiration of a 21-day period
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for designation shall be treated during that period as if it had been designated “HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and “CONFIDENTIAL HEALTH
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INFORMATION” in its entirety unless otherwise agreed. After the expiration of that
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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
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for 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” or “CONFIDENTIAL HEALTH INFORMATION.” If only a portion or
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portions of the information or item warrant protection, the Producing Party, to the extent
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practicable, shall identify the protected portion(s) and specify the level of protection
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being asserted.
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3.
Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure 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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H.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
1.
Timing of Challenges.
Any Party or Non-Party may challenge a
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designation of confidentiality at any time that is consistent with the Court’s Scheduling
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Order. Unless a prompt challenge to a Designating Party’s confidentiality designation
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is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
13
burdens, or a significant disruption or delay of the litigation, a Party does not waive its
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right to challenge a confidentiality designation by electing not to mount a challenge
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promptly after the original designation is disclosed. Challenges and designations may
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be based on the express provisions of this Order, as well as any applicable state or
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federal statutes, court rules, case decisions, or common law. A Challenging Party may
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also challenge a Designating Party’s confidentiality designation on the ground that the
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information is in the public domain at the time of disclosure to a Receiving Party, unless
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that information came into the public domain as a result of a violation of law or of this
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Order.
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2.
Meet and Confer.
The Challenging Party shall initiate the dispute
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resolution process under Local Rule 37.1 et seq. or follow the procedures for informal,
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telephonic discovery hearings on the Court’s website.
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3.
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.,
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to 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 or withdrawn
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the confidentiality designation, all parties shall continue to afford the material in
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question the level of protection to which it is entitled under the Producing Party’s
4
designation until the Court rules on the challenge.
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I.
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ACCESS TO AND USE OF PROTECTED MATERIAL
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 Action
8
only for prosecuting, defending, or attempting to settle this Action. Such Protected
9
Material may be disclosed only to the categories of persons and under the conditions
10
described in this Order. When the Action has been terminated, a Receiving Party must
11
comply with the provisions of section 14 below (FINAL DISPOSITION). Protected
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Material must be stored and maintained by a Receiving Party at a location and in a
13
secure manner that ensures that access is limited to the persons authorized under this
14
Order.
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Party’s own disclosure or use of its own Protected Material for any purpose.
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2.
Nothing in this Protective Order shall prevent or restrict a Producing
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
17
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 the
19
following:
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a.
the Receiving Party and its Outside Counsel of Record in this
21
Action, as well as employees of said Outside Counsel of Record to whom it is
22
reasonably necessary to disclose the information for this Action;
23
b.
the officers, directors, employees (including House Counsel) and
24
insurers of the Receiving Party (and its parent companies, subsidiaries, and affiliates)
25
to whom disclosure is reasonably necessary for this Action;
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c.
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Experts (as defined in this Order) of the Receiving Party to whom
2
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;
5
e.
court reporters and their staff;
6
f.
professional jury or trial consultants, mock jurors, and Professional
7
Vendors to whom disclosure is reasonably necessary for this Action and who have
8
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
g.
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the author or recipient of a document containing the information or
10
a custodian or other person who otherwise possessed, knew, or reasonably should have
11
known the information;
h.
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during their depositions, witnesses, and attorneys for witnesses, in
13
the Action provided: (1) the deposing party requests that the witness sign the form
14
attached as Exhibit A hereto; and (2) they will not be permitted to keep any confidential
15
information unless they sign the “Acknowledgment and Agreement to Be Bound”
16
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.
17
Pages of transcribed deposition testimony or exhibits to depositions that reveal
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Protected Material may be separately bound by the court reporter and may not be
19
disclosed to anyone except as permitted under this Stipulated Protective Order; and
i.
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any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
3.
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
23
ONLY” and “CONFIDENTIAL HEALTH INFORMATION” Information or Items.
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Unless otherwise ordered by the court or permitted in writing by the Designating Party,
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a Receiving Party may disclose any information or item designated “HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL HEALTH
27
INFORMATION” only to:
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a.
the Receiving Party’s Outside Counsel of Record in this action, as
2
well as employees of said Outside Counsel of Record to whom it is reasonably
3
necessary to disclose the information for this litigation and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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b.
House Counsel and the officers, directors, employees and insurers
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of the Receiving Party (and its parent companies, subsidiaries, and affiliates) to whom
7
disclosure is reasonably necessary for this litigation and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A), excepting from such
9
signature requirement a Party’s insurer representative;
10
c.
Experts (as defined in this Order) of the Receiving Party to whom
11
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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f.
professional jury or trial consultants, mock jurors, and Professional
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Vendors to whom disclosures is reasonably necessary for this litigation and who have
17
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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g.
the author or recipient of a document containing the information or
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a custodian or other person who otherwise possessed, knew, or reasonably should have
20
known the information;
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h.
during their depositions, witnesses, and attorneys for witnesses, in
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the Action to whom disclosure is reasonably necessary provided: (1) the deposing party
23
requests that the witness sign the form attached as Exhibit A hereto; and (2) they will
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not be permitted to keep any confidential information unless they sign the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
26
by the Designating Party or ordered by the court. Pages of transcribed deposition
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testimony or exhibits to depositions that reveal Protected Material may be separately
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bound by the court reporter and may not be disclosed to anyone except as permitted
2
under this Stipulated Protective Order; and
i.
3
any mediator or settlement officer, and their supporting personnel,
4
mutually agreed upon by any of the parties engaged in settlement discussions, provided
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the mediator or settlement officer signs the form attached as Exhibit A hereto.
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J.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
7
IN OTHER LITIGATION
8
If a Party is served with a subpoena or a court order issued in other litigation that
9
compels disclosure of any information or items designated in this Action as
10
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
11
or “CONFIDENTIAL HEALTH INFORMATION” that Party must:
12
13
14
1.
promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
2.
promptly notify in writing the party who caused the subpoena or order to
15
issue in the other litigation that some or all of the material covered by the subpoena or
16
order is subject to this Protective Order. Such notification shall include a copy of this
17
Stipulated Protective Order; and
18
19
3.
cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
20
If the Designating Party timely seeks a protective order, the Party served with the
21
subpoena or court order shall not produce any information designated in this action as
22
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
23
or “CONFIDENTIAL HEALTH INFORMATION” before a determination by the court
24
from which the subpoena or order issued, unless the Party has obtained the Designating
25
Party’s permission. The Designating Party shall bear the burden and expense of seeking
26
protection in that court of its confidential material and nothing in these provisions
27
should be construed as authorizing or encouraging a Receiving Party in this Action to
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16
1
disobey a lawful directive from another court.
2
K.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
3
PRODUCED IN THIS LITIGATION
4
1.
The terms of this Order are applicable to information produced by a Non-
5
Party in this action and designated as “CONFIDENTIAL” or “HIGHLY
6
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL HEALTH
7
INFORMATION.” Such information produced by Non-Parties in connection with this
8
litigation is protected by the remedies and relief provided by this Order. Nothing in
9
these provisions should be construed as prohibiting a Non-Party from seeking
10
11
additional protections.
2.
In the event that a Party is required, by a valid discovery request, to
12
produce a Non-Party’s confidential information in its possession, and the Party is
13
subject to an agreement with the Non-Party not to produce the Non-Party’s
14
confidential information, then the Party shall:
a.
15
promptly notify in writing the Requesting Party and the Non-Party
16
that some or all of the information requested is subject to a confidentiality agreement
17
with a Non-Party;
b.
18
promptly provide the Non-Party with a copy of the Stipulated
19
Protective Order in this litigation, the relevant discovery request(s), and a reasonably
20
specific description of the information requested; and
c.
21
22
23
make the information requested available for inspection by the
Non-Party, if requested.
3.
If the Non-Party fails to object or seek a protective order from this court
24
within 14 days of receiving the notice and accompanying information, the Receiving
25
Party may produce the Non-Party’s confidential information responsive to the discovery
26
request. If the Non-Party timely seeks a protective order, the Receiving Party shall not
27
produce any information in its possession or control that is subject to the confidentiality
28
17
1
agreement with the Non-Party before a determination by the court. Absent a court order
2
to the contrary, the Non-Party shall bear the burden and expense of seeking protection
3
in this court of its Protected Material.
4
L.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
5
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
6
Protected Material to any person or in any circumstance not authorized under this
7
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
8
the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
9
all unauthorized copies of the Protected Material, (c) inform the person or persons to
10
whom unauthorized disclosures were made of all the terms of this Order, and (d) request
11
such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
12
that is attached hereto as Exhibit A.
13
M.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
14
PROTECTED MATERIAL
15
When a Producing Party gives notice to Receiving Parties that certain
16
inadvertently produced material is subject to a claim of privilege or other protection,
17
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
18
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
19
may be established in an e-discovery order that provides for production without prior
20
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
21
parties reach an agreement on the effect of disclosure of a communication or
22
information covered by the attorney-client privilege or work product protection, the
23
parties may incorporate their agreement in the stipulated protective order submitted to
24
the court.
25
N.
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27
MISCELLANEOUS
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.
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18
2.
1
Right to Assert Other Objections. By stipulating to the entry of this
2
Protective Order no Party waives any right it otherwise would have to object to
3
disclosing or producing any information or item on any ground not addressed in this
4
Stipulated Protective Order. Similarly, no Party waives any right to object on any
5
ground to use in evidence of any of the material covered by this Protective Order.
3.
6
Filing Protected Material. A Party that seeks to file under seal any
7
Protected Material must comply with Civil Local Rule 79-5. Protected Material may
8
only be filed under seal pursuant to a court order authorizing the sealing of the specific
9
Protected Material at issue. If a Party's request to file Protected Material under seal is
10
denied by the court, then the Receiving Party may file the information in the public
11
record unless otherwise instructed by the court.
12
O.
FINAL DISPOSITION
13
Within 60 days after the final disposition of this Action, as defined in paragraph
14
4, each Receiving Party must return all Protected Material to the Producing Party or
15
destroy such material. As used in this subdivision, “all Protected Material” includes all
16
hard and electronic copies, abstracts, derivations, compilations, summaries, and any
17
other format reproducing or capturing any of the Protected Material. Whether the
18
Protected Material is returned or destroyed, the Receiving Party must submit a written
19
certification to the Producing Party (and, if not the same person or entity, to the
20
Designating Party) by the 60 day deadline that (1) identifies (by category, where
21
appropriate) all the Protected Material that was returned or destroyed and (2) affirms
22
that the Receiving Party has not retained any hard and electronic copies, abstracts,
23
derivations, compilations, summaries or any other format reproducing or capturing any
24
of the Protected Material. Notwithstanding this provision, Counsel and Receiving
25
Party’s insurers are entitled to retain an archival copy of all pleadings, motion papers,
26
trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition
27
and trial exhibits, expert reports, attorney work product, and consultant and expert work
28
19
1
product, even if such materials contain Protected Material. Any such archival copies
2
that contain or constitute Protected Material remain subject to this Protective Order as
3
set forth in Section 4 (DURATION). A Party’s insurer is not required to comply with
4
the terms of this section to the extent such compliance would violate any statutory,
5
regulatory or other legal requirement or obligation to the contrary.
6
P.
7
8
9
MISCELLANEOUS
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.
2.
Party's Disclosure of its Own Documents. Nothing in this Order shall
10
prevent a Producing Party from disclosing its own Disclosure or Discovery Material,
11
including Protected Material, in any manner it chooses.
12
3.
Right to Assert Other Objections. By stipulating to the entry of this Order,
13
no Party waives any right it otherwise would have to object to disclosing or producing
14
any information on any ground not addressed in this Order. Similarly, no Party waives
15
any right to object on any ground to use in evidence of any of the material covered by
16
this Order.
17
4.
Effectiveness when Executed. Once executed by the Parties, the
18
Stipulation shall be treated by the Parties as an Order of Court until it is formally
19
approved by the Court.
20
5.
Violation of this Order. Any violation of this Order may be punished by
21
any and all appropriate measures including, without limitation, contempt proceedings
22
and/or monetary sanctions.
23
24
25
26
27
28
20
1
2
3
4
5
6
7
8
9
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: January 7, 2021
By:
/s/ Theodore Maya
Tina Wolfson (SBN 174806)
Bradley K. King (SBN 274399)
Theodore Maya (SBN 223242)
AHDOOT & WOLFSON, PC
2600 West Olive Ave., Suite 500
Burbank, CA 91505
(310) 474.9111; Fax 310.474.8585
twolfson@ahdootwolfson.com
bking@ahdootwolfson.com
tmaya@ahdootwolfson.com
Daniel S. Robinson (SBN 244245)
Wesley K. Polischuk (SBN 254121)
Michael W. Olson (SBN 312857)
ROBINSON CALCAGNIE, INC.
19 Corporate Plaza Drive
Newport Beach, CA 92660
(949) 720-1288; Fax (949) 720-1292
drobinson@robinsonfirm.com
wpolischuk@robinsonfirm.com
molson@robinsonfirm.com
17
18
19
20
21
22
23
24
Jean S. Martin (Admitted Pro Hac Vice)
Ryan J. McGee (Admitted Pro Hac Vice)
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, Florida 33602
(813) 559-4908; Fax (813) 222-4795
jeanmartin@ForThePeople.com
rmcgee@ForThePeople.com
Plaintiffs’ Co-Lead Counsel
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26
Gary E. Mason (Pro Hac Vice Forthcoming)
MASON LIETZ & KLINGER LLP
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28
21
5101 Wisconsin Ave., NW, Ste. 305
Washington, DC 20016
(202) 640-1160
gmason@masonllp.com
1
2
3
4
Melissa R. Emert (Pro Hac Vice
Forthcoming)
KANTROWITZ GOLDHAMER &
GRAIFMAN, P.C.
747 Chestnut Ridge Road
Chestnut Ridge, New York 10977
(845) 356-2570; Fax (845) 356-4335
ggraifman@kgglaw.com
Plaintiffs’ Executive Committee
5
6
7
8
9
10
Attorneys for Plaintiffs and the Proposed
Class
11
12
13
Dated: January 7, 2021
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15
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20
21
By: _/s/ Craig J. Mariam_______________
Craig J. Mariam
Hazel Mae B. Pangan
Raymond J. Muro
GORDON REES SCULLY
MANSUKHANI, LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071
(213) 576-5000; Fax: (877) 306-0043
cmariam@grsm.com
hpangan@grsm.com
rmuro@grsm.com
Attorneys for Defendants
22
23
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
24
25
DATED: January 8, 2021
_________________________
Honorable Karen E. Scott
United States Magistrate Judge
26
27
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22
1
2
3
ATTESTATION REGARDING SIGNATURES
I, Theodore Maya, attest that all signatories listed, and on whose behalf the
filing is submitted, concur in the filing’s content and have authorized the filing.
4
5
Dated: January 7, 2021
/s/ Theodore Maya
Theodore Maya
6
7
8
9
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1
EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _____________________________ [print or type full name], of
4
_________________ [print or type full address], declare under penalty of perjury
5
that I have read in its entirety and understand the Stipulated Protective Order that
6
was issued by the United States District Court for the Central District of California
7
on [date] in the case of In Re: Ambry Genetics Data Breach Litigation, Case No.
8
8:20-cv-00791. 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. I
11
solemnly promise that I will not disclose in any manner any information or item that
12
is subject to this Stipulated Protective Order to any person or entity except in strict
13
compliance with the provisions of this Order.
14
I further agree to submit to the jurisdiction of the United States District Court
15
for the Central District of California for the purpose of enforcing the terms of this
16
Stipulated Protective Order, even if such enforcement proceedings occur after
17
termination of this action. I hereby appoint __________________________ [print or
18
type full name] of _______________________________________ [print or type full
19
address and telephone number] as my California agent for service of process in
20
connection with this action or any proceedings related to enforcement of this
21
Stipulated Protective Order.
22
23
Date: ______________________________________
24
City and State where sworn and signed: _________________________________
25
26
Printed name: _______________________________
27
Signature: __________________________________
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24
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