Patterson v. Bayer Healthcare Pharmaceuticals Inc.

Filing 27

ORDER GRANTING 26 PROTECTIVE AND CONFIDENTIALITY STIPULATION, signed by Magistrate Judge Jennifer L. Thurston on 4/29/2015. (Hall, S)

1
2
3
4
5
6
7
8

ARIAS OZZELLO & GIGNAC LLP
Mike Arias (SBN 115385)
6701 Center Drive West, Suite 1400
Los Angeles, California 90045-1558
Telephone: [phone]
Facsimile: 310.670.1231
JONES WARD PLC
Lawrence L. Jones II (KY# 88459)
Admitted Pro Hac Vice
312 South Fourth St., 6th Floor
Louisville, Kentucky 40202
Telephone: [phone]
Facsimile: 502.587.2007

9
10
11
12
13
14
15
16

Attorneys for Plaintiff Kareama Patterson
Alicia J. Donahue, SBN 117412
[e-mail]
Amir Nassihi, SBN 235936
[e-mail]
SHOOK, HARDY & BACON L.L.P.
One Montgomery, Suite 2700
San Francisco, California 94104-4505
Telephone:
415-544-1900
Facsimile:
415-391-0281
Attorneys for Defendant
Bayer HealthCare Pharmaceuticals, Inc.

17
UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA

19

FRESNO DIVISION

20
21

KAREAMA PATTERSON,
Plaintiff,

22
23
24
25

Case No. 1:14-cv-01087-LJO-JLT
ORDER GRANTING PROTECTIVE AND
CONFIDENTIALITY STIPULATION

v.
(Doc. 26)
BAYER HEALTHCARE
PHARMACEUTICALS INC.,
Defendant.

26
27
28

1
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1
2
3

The Court hereby makes the following Protective and Confidentiality Order the Order of this
Court applicable to the parties and their counsel:
1.

Discovery Materials. This Stipulation and Protective Order applies to all products of

4

discovery and all information derived there from, including, but not limited to, all documents and

5

deposition testimony and any copies, excerpts or summaries thereof (“Discovery Materials”),

6

obtained by any party pursuant to the requirements of any court order, requests for production of

7
8
9

documents, requests for admissions, interrogatories or subpoenas.
2.

Identification of Confidential Discovery Materials. All Discovery Materials that

10

contain trade secrets and other confidential research, development, or commercial information, or

11

Plaintiff’s personal and medical information may in good faith be stamped “Confidential” by the

12

producing party and shall be subject to the provisions of this Stipulation and Protective Order. Such

13
14

stamping or marking will take place prior to production by the producing person, or subsequent to
selection by the receiving party for copying but prior to the actual copying. The stamp shall be

15
16
17
18

affixed in such manner as not to obliterate or obscure any written matter.
3.

Subject to the provisions of paragraph 5 of this Protective Order, disclosure of any

Confidential Discovery Materials shall be limited to:

19

a.

the Court and its staff;

20

b.

“counsel,” including inside Counsel and Outside Attorneys and their office
attorneys, legal assistants, and clerical staffs;

c.

persons shown on the face of the document to have authored or received it;

d.

court reporters and videographers retained to transcribe testimony;

e.

the parties;

f.

retained experts or vendors who are expressly retained by or on behalf of any
party to provide assistance or testimony with respect to the underlying
litigation;

g.

any witness during deposition in this Litigation; and

h.

Plaintiff’s healthcare providers.
2

21
22
23
24
25
26
27
28

STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1

4.

Challenging Confidential Designation. Counsel for a party to whom Confidential

2

Discovery Materials are being produced may challenge the “Confidential” designation made by the

3

producing party by first requesting a “meet and confer” with the producing party in an attempt to

4

amicably resolve the challenge.

5

confidentiality may apply by motion for a ruling as to whether the designated discovery material

6

In the event agreement cannot be reached, the proponent of

may, in accordance with this Order, be treated as confidential. This motion shall be made within 30

7
8
9

days from the date on which the parties, after good faith attempt, agree that they cannot resolve the
dispute or such other time period agreed to by the parties. The party seeking to maintain the

10

materials as “Confidential” shall have the burden of proof on such motion to establish the propriety

11

of its confidential designation. The Discovery Materials designated “Confidential” shall continue to

12

be treated as such and subject to the provisions of this Protective and Confidentiality Order pending

13
14

determination by the Court of the merits of any such motion. In the event that the Court enters an
order that particular Discovery Materials are not entitled to the designation “Confidential” the

15
16

Discovery Materials shall nevertheless continue to be treated as “Confidential” and subject to the

17

terms of this Stipulation and Protective Order for 30 days following the service of Notice of Entry of

18

such order to enable the producing party to seek review and a stay of such order.

19
20
21

5.

Disclosure of Confidential Discovery Material.
a.

The disclosure of the Discovery Materials designated as “Confidential” by

counsel for a party to the Litigation to legal assistants, paralegals and clerical staff employed

22
by the disclosing counsel's office and the Court is allowed under the terms of this Stipulation
23
24

and Protective Order without limitation and without the need to execute an Affidavit. Such

25

disclosure shall not constitute a violation or a waiver of the protections afforded by the

26

Protective and Confidentiality Order.

Said assistants, paralegals and clerical staff, as

27
28

3
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1
2
3

employed agents of the disclosing counsel, are bound by this Order to the same extent as the
parties and attorneys are bound.
b.

Disclosure by counsel for a party in the Litigation to any of the other

4

individuals/entities identified in sections 3.c-g of Discovery Materials designated as

5

“Confidential” by another party shall not constitute a violation or waiver of the protections

6

afforded by this Protective and Confidentiality Order to the extent that such disclosure is

7
8
9

necessary to assist in the prosecution or defense of the Litigation and so long as the
individual/entity (or, in the event that an entity is not a natural person, the entity’s

10

employees) to whom disclosure is made has executed an Affidavit in the form attached

11

hereto as Exhibit A. Copies of each executed Affidavit shall be maintained by the disclosing

12

counsel.

13
14

c.

Disclosure by counsel to a plaintiff’s healthcare provider and/or that

healthcare provider’s counsel, outside of a deposition setting, of Discovery Materials

15
16

designated as “Confidential” by another party shall not constitute a violation or waiver of the

17

protections afforded by this Protective and Confidentiality Order to the extent that such

18

disclosure is necessary to assist in the prosecution or defense of the Litigation and so long as

19

the individual/entity (or, in the event that an entity is not a natural person, the entity’s

20

employees) to whom disclosure is made has executed an Affidavit in the form attached

21

hereto as Exhibit A. Copies of each executed Affidavit shall be maintained by the disclosing

22
counsel. Such disclosure, outside of a deposition setting, shall be limited to the following
23
24

categories of documents:

25

i.

All documents (including call notes) referencing the healthcare

26

provider to whom the disclosure is being made.

27
28

4
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

ii.

1

All promotional materials identified as being used for the purposes of

2

sales call visits with the healthcare provider to whom the disclosure is being

3

made.

4

iii.

5

visits with healthcare providers found within the custodial file of a sales

6

All approved promotional materials used for the purposes of sales call

representative who called on the healthcare provider to whom the disclosure is

7
being made.

8

iv.

All documents and materials presented during educational seminars

10

(i.e.

continuing

11

lectures/meetings).

12

v.

9

13

medical

education

lectures

and

other

similar

All “Dear Doctor” and “Dear Healthcare Provider” letters sent to

healthcare providers in the United States.

14
vi.

All documents publicly available.

15
16

d.

Any party seeking to use Discovery Materials designated as “Confidential” by

17

another party fall outside of the categories set forth in 5(c)(i-vi) during the deposition of

18

plaintiff’s healthcare provider must give the other party notice of its intent and the documents

19

it plans to use seven days prior to the deposition.

20
21

e.

During a deposition, disclosure by counsel to a witness and/or that witness’s

counsel, if any, of Discovery Materials designated as “Confidential” by another party shall be

22
permitted so long as the witness to whom the disclosure is made has executed the Affidavit
23
24

or orally agreed on the record to the terms of the Affidavit attached hereto as Exhibit A.

25

Under no circumstances shall copies of Discovery Materials designated as “Confidential”

26

used at a deposition be left in the possession of the witness or his/her counsel. Further,

27

copies of Discovery Materials designated “Confidential” shall not be attached to or included

28

5
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1

with any original or copy of the transcript of a deposition sent to the witness or his/her

2

counsel.

3

f.

In addition, within thirty (30) days after the completion of a deposition

4

session, counsel may designate the entirety or any specified portion of the transcript or

5

exhibits thereto as “Confidential” by letter to the opposing party. Until such thirty (30) day

6

period expires, the entirety of such transcripts and all exhibits thereto shall be treated as

7
8
9

Confidential and subject to this Order. After such thirty (30) day period expires, such
transcripts, exhibits or portions designated as “Confidential” shall be treated as such under

10

this Order. If no such designation is made within thirty (30) days, such transcripts or exhibits

11

shall not be treated as “Confidential” under this Stipulation and Protective Order.

12
13
14

g.

Any materials provided to an insurer or its counsel shall not be used for any

purpose other than evaluation of the claims asserted in this litigation and shall not be used
outside the claims asserted in this litigation.

15
16

6.

Except as provided for herein, nothing in this Protective and Confidentiality Order

17

shall prevent or restrict counsel for any party in any way from inspecting, reviewing, using or

18

disclosing any Discovery Materials produced or provided by that party, including Discovery

19

Materials designated as “Confidential.” The parties reserve all their respective rights concerning

20

whether or not there has been a waiver of confidentiality in the event that the producing party shares

21

such Discovery Materials designated as Confidential with third parties other than as provided for

22
elsewhere in this Protective and Confidentiality Order.
23
24

7.

Disclosure of Discovery Materials designated as “Confidential” other than in

25

accordance with the terms of this Protective and Confidentiality Order may subject the disclosing

26

person to such sanctions and remedies as the Court may deem appropriate.

27
28

6
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1

8.

All persons receiving or given access to Discovery Materials designated as

2

“Confidential” in accordance with the terms of this Protective and Confidentiality Order consent to

3

the continuing jurisdiction of this Court for the purposes of enforcing this Protective and

4

Confidentiality Order and remedying any violations thereof. All parties and their respective counsel,

5

paralegals and the employees and assistants of all counsel, and experts receiving Discovery

6

Materials designated as “Confidential” shall take steps reasonably necessary to prevent the

7
8
9
10

disclosure of Confidential Discovery Materials other than in accordance with the terms of this
Stipulation and Protective Order.
9.

This Order does not equate to the Court’s agreement that “Confidential” records may

11

be filed under seal automatically seal court records in this case or nor does it equate to a

12

determination as to how “Confidential” documents will be used at trial apply to the disclosure of

13
14

Confidential Discovery Material at trial. It is only intended to facilitate the prompt production of
discovery materials. A party that seeks to file documents under seal SHALL comply with Local

15
16
17

Rule 141. A party that seeks to file with this Court any material that contains, describes, identifies,
discloses, discusses, refers to or attaches any Discovery Materials designated as “Confidential” shall

18

file such Discovery Materials under seal in compliance with applicable law. Documents filed under

19

seal with the Clerk of the Court shall be kept under seal until further order of the Court, so long as

20

the Court permits, in a sealed envelope with information required by the Court as well as the

21

following statement endorsed on it:

22
Confidential
23
24
25
26

This envelope contains documents that are subject to a Protective Order entered by
the Court in this action governing the use of Confidential Discovery Material. All
such material so filed shall be maintained by the Clerk of the Court separate from the
public records in this action, and shall be released only upon further Order of the
Court.

27
28

7
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1

10.

The producing party of any Confidential Discovery Materials attached to or

2

referenced in a document filed with the Court under seal may assent to the unsealing of the

3

document at any juncture without waiving its assertion of confidentiality as to any other Discovery

4

Materials.

5

11.

6

Nothing shall prevent disclosure beyond that required under this Protective and

Confidentiality Order if the producing party consents in writing to such disclosure, or if the Court,

7
8
9
10

after notice to all affected parties, orders such disclosure and that Order is not subject to an appellate
stay within 30 days after Notice of Entry of the Order is served on the producing party.
12.

Any party who inadvertently fails to identify documents, including deposition

11

transcripts, as “Confidential” shall, promptly upon discovery of its oversight, provide written notice

12

of the error and substitute appropriately designated documents produced in the same format as the

13
14

incorrectly designated document was initially produced. Any party receiving such inadvertently
unmarked documents shall, following receipt of notice of the error, treat such documents as

15
16

Confidential as if they had initially been designated as such, make good faith and reasonable efforts

17

to retrieve documents distributed to persons not entitled to receive documents with the corrected

18

“Confidential - Subject to Protective Order” designation and, upon receipt of the substitute

19

documents, promptly return or destroy the improperly designated document(s) and/or the electronic

20

media on which such document(s) reside.

21
22

12.

Procedure for Use in Court. Discovery Material received by the Court or entered

into evidence in non-trial proceedings shall not lose its status as “Confidential” Discovery Materials

23
24

as a result. However, the Court pretrial order governs how documents may be used at trial. Thus,

25

the parties must raise the issue with the Court in order to ensure the pretrial order adequately

26

addresses the topic. The use of any Discovery Material designated as “Confidential” at trial will be

27

addressed in the Court’s Pretrial Order.

28

8
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1

13.

This Protective and Confidentiality Order shall be binding throughout and after final

2

adjudication of this action, including but not limited to any final adjudication of any appeals and

3

petitions for extraordinary writs.

4
5
6

14.

Unless otherwise ordered or agreed in writing by the producing party, and if

requested by the producing party, each receiving party must return all Confidential Discovery
Material to the producing party or provide a certification to the producing party that all Confidential

7
8
9

Discovery Material in their possession has been destroyed after the final termination of this action
including copies of materials provided to third parties under the provisions of this Order.

10

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

11

motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such

12

materials contain Confidential Discovery Material.

13
14

Any such archival copies that contain or

constitute Confidential Discovery Material remain subject to this agreement as set forth in Paragraph
16 above.

15
16

15.

Within thirty (30) days after final adjudication of this action, including but not limited

17

to, any final adjudication of any appeals and petitions for extraordinary writs, Plaintiff or Defendant

18

may request that the Clerk return under seal to counsel for the producing party all Discovery

19

Materials designated “Confidential” including, without limitation, all transcripts or other things that

20

were subject to the provisions of this Protective and Confidentiality Order.

21

16.

Any party may apply to the Court for a modification of the Protective and

22
Confidentiality Order, and nothing in this Protective and Confidentiality Order shall be construed to
23
24
25

prevent a party from seeking such further provisions enhancing or limiting confidentiality as may be
appropriate.

26
27
28

9
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1

17.

No action taken in accordance with the Protective and Confidentiality Order shall be

2

construed as a waiver of any claim or defense in the Litigation or of any position as to

3

discoverability or admissibility of evidence.

4
5
6

18.

If a receiving party or its counsel or expert is served with a subpoena or other process

by any court, administrative or legislative body, or any other person or organization that calls for
production of any Confidential Discovery Materials produced by another party, the party to whom

7
8
9

the subpoena or other process is directed shall not, to the extent permitted by applicable law, provide
or otherwise disclose such documents or information until 10 business days after notifying counsel

10

for the producing party in writing of all of the following: (1) the information and documentation

11

requested for production in the subpoena; (2) the date on which compliance with the subpoena is

12

requested; (3) the location at which compliance with the subpoena is requested; (4) the identity of

13
14

the party serving the subpoena; and (5) the case name, jurisdiction and index, docket, complaint,
charge, civil action or other identification number or other designation identifying the litigation,

15
16
17

administrative proceeding or other proceeding in which the subpoena has been issued.
19.

Nothing in this Stipulation and Protective Order shall be construed to prevent this

18

Court from disclosing any facts relied upon by it in making or rendering any finding, ruling, order,

19

judgment or decree of whatever description.

20
21

20.

Each party shall bear its own costs for complying with this Protective and

Confidentiality Order.

22
21.

Discovery Materials designated as “Confidential” produced by any defendant in this

23
24

case may be disclosed to the named plaintiff(s) in other Mirena® lawsuits and their counsel who

25

have executed Exhibit B acknowledging that: (a) they have filed and served the defendant who

26

produced the Discovery Materials to which they would like access, (b) their lawsuit alleges use of

27

the Mirena® and subsequent injury of idiopathic intracranial hypertension, (c) a protective order has

28

10
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1

been entered in the lawsuit described in the preceding subclause (b) has an identical protective order

2

to this one entered; (d) all counsel for plaintiff who receive the documents agree to be governed by

3

the terms of this Order.

4

Defendant(s).

Upon execution, Exhibit B shall be provided to counsel for the

5
6
7
8

IT IS SO ORDERED.
Dated:

April 29, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

11
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1
2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF CALIFORNIA

4

FRESNO DIVISION

5

KAREAMA PATTERSON,

6
7
8
9

Case No. 1:14-cv-01087-LJO-JLT

Plaintiff,
v.
BAYER HEALTHCARE
PHARMACEUTICALS INC.,
Defendant.

10
11
12

EXHIBIT A

13
14

AGREEMENT TO MAINTAIN CONFIDENTIALITY

15
16

STATE OF _____________

17

COUNTY OF

)
)
)

18
19
20
21
22
23

___________________________________, being duly sworn, deposes and says:
1.

I am over the age of 18 years and make this Affidavit based upon my personal

knowledge, and I am competent to testify to the matters stated herein.
2.

I am aware that a Stipulation and Protective Order has been entered in the above-

captioned case. A copy of that Stipulation and Protective Order has been shown to me, and I have

24
read and understand its contents.
25
26
27
28

12
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1

3.

By signing this Affidavit, I promise that I will not use the materials and contents of

2

the materials designated “Confidential” pursuant to the above-described Stipulation and Protective

3

Order for any purpose other than this litigation.

4
5
6

4.

By signing this Affidavit, I also promise that I will not communicate, disclose,

discuss, identify, or otherwise use materials or the contents of materials designated “Confidential”
pursuant to the above-described Stipulation and Protective Order with, to, or for any person or entity

7
8
9

other than the Court, a party to the above-described Litigation, counsel for a party to the Litigation,
including other counsel, paralegals, and staff employed in his or her office, persons permitted by the

10

above-described Stipulation and Protective Order to attend depositions taken in the Litigation, and

11

persons or entities assisting such counsel who have executed an affidavit in the same form as this

12

Affidavit.

13
14

5.

By signing this Affidavit, I also promise that I will not copy, transcribe, or otherwise

reproduce, or cause to be copied, transcribed, or otherwise reproduced, by any means whatsoever,
15
16

any materials or the contents of any materials designated “Confidential” pursuant to the above-

17

described Stipulation and Protective Order except to the extent to which I am directed to do so by

18

counsel for a party to the Litigation, in which case all such copies, transcriptions, or reproductions

19

shall be made solely for my own use in connection with my work or assistance in the above matter.

20

I further promise at the conclusion of the Litigation to deliver upon request all materials designated

21

“Confidential” (originals and copies) to the counsel who originally directed that said materials be

22
provided to me.
23
24
25
26
27
28

6.

I understand that, by signing this Affidavit, I am agreeing to subject myself to the

jurisdiction of this Court.
7.

I understand that any use or distribution of the materials or contents of the materials

designated “Confidential” pursuant to the above-described Stipulation and Protective Order in any
13
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1
2

manner contrary to the provisions of the Stipulation and Protective Order will subject me to
remedies as this Court may deem appropriate.

3
4
5
Signature of Affiant

6
7
8
9

Subscribed to and sworn before me,
this ____ day of _______, 201_.
____________________________
Notary Public
[Seal]

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

14
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1
2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF CALIFORNIA

4

FRESNO DIVISION

5

KAREAMA PATTERSON,

6
7
8
9

Case No. 1:14-cv-01087-LJO-JLT

Plaintiff,
v.
BAYER HEALTHCARE
PHARMACEUTICALS INC.,
Defendant.

10
11
12
13
14
15

EXHIBIT B
AGREEMENT TO MAINTAIN CONFIDENTIALITY
STATE OF ___________
)
)
COUNTY OF
)

16

___________________________________, being duly sworn, deposes and says:

17

1.

18
19

I am an attorney and make this Affidavit based upon my personal knowledge, and I

am competent to testify to the matters stated herein.
2.

I am aware that a Stipulation and Protective Order has been entered in this case. A

20
copy of that Stipulation and Protective Order has been shown to me, and I have read and understand
21
22
23

its contents.
3.

By signing this Affidavit, I promise that I will not use the materials and contents of

24

the materials designated “Confidential” pursuant to the above-described Stipulation and Protective

25

Order for any purpose other than this litigation.

26
27
28

4.

By signing this Affidavit, I agree to be bound by all terms of the above-described

Stipulation and Protective Order.
15
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT

1
2
3

6.

I understand that, by signing this Affidavit, I am agreeing to subject myself to the

jurisdiction of this Court.
7.

I understand that any use or distribution of the materials or contents of the materials

4

designated “Confidential” pursuant to the above-described Stipulation and Protective Order in any

5

manner contrary to the provisions of the Stipulation and Protective Order will subject me to

6

remedies as this Court may deem appropriate.

7
8
9

8.

By signing this affidavit, I am verifying under oath that I am a named plaintiff or

counsel for a named plaintiff in a Mirena lawsuit that has previously been filed and served (“the

10

Lawsuit”) where (a) all the claimed injury(ies) in the Lawsuit allegedly result from the use of

11

Mirena® and subsequent injury of idiopathic intracranial hypertension, and (b) a protective order has

12

been entered in the Lawsuit that is identical to the present order.

13
14

9.

By signing this affidavit, I agree to only access and review Discovery Materials

produced by parties that I have sued and served in the Lawsuit.
15
16
17

Dated: ___________,
_________, 201_

18
19
20
21
22

Signature of Affiant
Subscribed and sworn to before me,
this _____ day of _______
_____________________________
Notary Public

23
24
25
26
27
28

16
STIPULATED PROTECTIVE AND CONFIDENTIALITY ORDER
Case No. 1:14-cv-01087-LJO-JLT