Norton v. Independence Technology, L.L.C.

Filing 14

STIPULATED PROTECTIVE ORDER signed by Judge Morrison C. England, Jr on 7/7/11. (Becknal, R)

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MOLLIE F. BENEDICT – STATE BAR NO. 187084
MONEE A. TAKLA – STATE BAR NO. 259468
TUCKER ELLIS & WEST LLP
515 South Flower Street, Forty-Second Floor
Los Angeles, CA 90071-2223
Telephone: [phone]
Facsimile: 213.430.3409
Email: [e-mail]
Email: [e-mail]

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INDEPENDENCE TECHNOLOGY, L.L.C.

TUCKER ELLIS & WEST LLP

UNITED STATES DISTRICT COURT

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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EASTERN DISTRICT OF CALIFORNIA

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11 JAMES L. NORTON,
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Case No. 2:10-cv-03218-MCE-JFM

Plaintiff,
STIPULATED PROTECTIVE ORDER

v.

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14 INDEPENDENCE TECHNOLOGY, LLC,

a Johnson & Johnson Company and DOES

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Defendant.

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1.

It is hereby stipulated and agreed by and between Plaintiff James L. Norton

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(“Plaintiff”) and Defendant Independence Technology, L.L.C. (“Defendant”)

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(collectively, the “Parties”) by and through their attorneys of record that Plaintiff may

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seek the production of documents and information from Defendant pursuant to this

22 Stipulated Protective Order. The Parties agree that these materials may contain
23 privileged and/or confidential and proprietary business information of Defendant and that
24 a Protective Order preserving the confidentiality of certain documents should be entered
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STIPULATED PROTECTIVE ORDER
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2.

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As hereinafter used, the term “confidential information” refers to

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information protected by Rule 26 of the Federal Rules of Civil Procedure, or other

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applicable laws or rules as a “trade secret” (as defined in the Uniform Trade Secrets Act)

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or privacy laws, including personal or medical information and includes, but is not

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limited to:
a.

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manufacturing, testing, and marketing processes;

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b.

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Proprietary rights, including technical information constituting trade
secrets;

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Cleveland ♦ Columbus ♦ Denver♦ Los Angeles ♦ San Francisco

Independence Technology, L.L.C.’s internal development, design,

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Marketing plans, cost and pricing structures, customer lists, distributor

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lists, competitors and analysis of competitor products and independent

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contractors;
d.

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Practices, procedures and protocols related to quality control and
quality assurance; and

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e.

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Manufacturing practices and procedures and specific records
illustrating same.

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These and other similar matters are confidential and proprietary because they are

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not known to competitors or potential competitors of Independence Technology, L.L.C.

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or the general public and have entailed substantial cost to develop and are necessary to

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compete in a heavily regulated industry and comply with governing FDA regulations.
3.

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This Protective order shall not apply to the following materials:

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(a)

Documents of public record;

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(b)

Documents filed as a public record with the clerk of any federal or

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state court (not including exhibits or depositions or discovery

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responses which, if within the conscripts of this Protective Order,

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must be filed under seal and with clear marking on the envelopes in

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which they are enclosed that they are subject to this Protective Order);

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(c)

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Documents filed with any federal or state agency, copies of which are

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required by that agency to be freely available in their entirety to the

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public; and
(d)

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Documents or articles published in trade magazines or other general
circulation publications.

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It is acknowledged that certain documents and other information made, or to be

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secrets essential to the continued business interests of the Defendant and that the

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made available by Defendant contain confidential and proprietary information, and trade

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Cleveland ♦ Columbus ♦ Denver♦ Los Angeles ♦ San Francisco

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improper disclosure of such information would cause substantial damage to the legitimate

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business interests of the Defendant.
4.

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Any party or person producing or filing a document in this action may

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designate that document, or any portion thereof, as stamped “Protected Document.

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Document Subject to Protective Order” (hereinafter, “Protected Documents”). The

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legend shall be affixed to the document designated, but shall not obscure any part of the

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text. A designation shall subject the document, and its contents, to this Protective Order

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without any further act on the part of the person desiring confidentiality. Any

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information which is designated confidential shall be immediately and at all times

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hereafter maintained and kept confidential by the receiving party, as subject to this

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Protective Order.
5.

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Deposition testimony or any portion thereof may be designated

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“confidential” on the record at the time of the deposition. Any party may, within (30)

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days after receiving a deposition transcript, designate the transcript as protected pursuant

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to this Protective Order by written notice to counsel of the designation and by having the

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cover page of the transcript marked “Protected Documents.” Copies of Protected

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Documents portions of the transcript shall likewise be marked and may be used by the

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Parties, subject to the limitations of this Protective Order.

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6.

In the event any information or document subject to the confidentiality

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restrictions of this Protective Order is contained within any briefs, motions or other

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documents filed with the Court, or is referred to in any hearing before the Court, such

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copy or reference shall be made under seal pursuant to Local Rule 141 and shall be

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designated Protected Documents unless otherwise agreed to in writing or on the record by

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counsel for the producing party.

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If another court or administrative agency subpoenas or orders production of

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the Protected Documents which a party has obtained under terms of this Protective Order,

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the party shall promptly notify Defendant’s counsel of such subpoena or order. Protected

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Documents shall not be produced by the party until Defendant’s counsel has been

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notified of such subpoena or order and has had a reasonable opportunity to protect

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Defendant’s interest by objecting to the subpoena order.

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Inadvertent production of any document or information without a

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confidential designation will not be deemed to waive a later claim to its confidential

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nature or preclude a party from designating said document or information as confidential

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pursuant to this Order at a later date. A written representation by counsel for the

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producing party that the disclosure was inadvertent shall be deemed prima facie of that

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fact. Any party may designate as Protected Documents or withdraw a Protected

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Documents designation from any material that it has produced, provided, however, that

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such re-designation shall be effective only as of the date of such re-designation. A party

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must treat such documents and things with the noticed level of protection from the date

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such notice is received. Such re-designation shall be accomplished by notifying counsel

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for each party in writing of such re-designation and providing replacement images

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bearing the appropriate description. Upon receipt of any re-designation and replacement

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image that designates material as Protected Documents, all Parties shall (1) treat such

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material in accordance with this Order; (2) take reasonable steps to notify any persons

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known to have possession of any such material of such re-designation under this

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Protective Order; and (3) promptly endeavor to procure all copies of such material from
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any persons known to have possession of such material who are not entitled to receipt

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under this Protective Order.
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Inadvertent production of documents (hereinafter “Inadvertently Produced

4 Documents”) subject to work-product immunity, the attorney-client privilege, or other
5 legal privilege protecting information from discovery shall not constitute a waiver of the
6 immunity or privilege, provided that the party producing the documents shall notify all
7 Parties in writing within a reasonable period of time from the discovery of the inadvertent
8 production. If such notification is made, such Inadvertently Produced Documents and all

TUCKER ELLIS & WEST LLP

Cleveland ♦ Columbus ♦ Denver♦ Los Angeles ♦ San Francisco

9 copies thereof shall, upon request, be returned to the party making the inadvertent
10 production, all notes or other work product of the receiving party reflecting the contents
11 of such materials shall be destroyed, and such returned or destroyed material shall be
12 deleted from any litigation-support or other database. If the party receiving the
13 production disputes in writing the claim of privilege they may retain possession of the
14 Inadvertently Produced Documents as well as any notes or other work product of the
15 receiving party reflecting the contents of such materials pending the resolution by the
16 Court of the motion below. If the receiving party’s motion is denied, the receiving party
17 shall promptly comply with the immediately preceding provisions of this paragraph or
18 such other directives as may be issued by the Court. No use shall be made of such
19 Inadvertently Produced Documents during depositions or at trial, nor shall they be
20 disclosed to anyone who was not given access to them prior to the request to return or
21 destroy them. The party receiving such Inadvertently Produced Documents may, after
22 receipt of the notice of inadvertent production, move the Court to oppose the request for
23 return of the subject materials. Each party retains all rights and arguments as to any
24 proceeding regarding Inadvertently Produced Documents.
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10.

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If any party intends to disclose the information which has been designated

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Protected Documents to consultants or experts or others retained in the preparation of this

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case, the party shall supply each person receiving such information with a copy of this

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Order. Each such person shall execute a Confidentiality Agreement in the form annexed

5 hereto as Exhibit A, acknowledging that he/she is familiar with the provisions of this
6 Order and agrees to abide by them. Each such person shall execute the statement before
7 he/she is provided with any information that has been designated as Protected
8 Documents. In the case that such person is an expert consultant, who has not yet been

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Cleveland ♦ Columbus ♦ Denver♦ Los Angeles ♦ San Francisco

9 designated under Rule 26(a)(2) of the Federal Rules of Civil Procedure, said statement
10 shall be provided to counsel for Defendant at the time expert witnesses are designated.

11.

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Documents, materials and information designated as Protected Documents

12 shall not be given, shown, made available, or communicated in any way to anyone other
13 than the Plaintiff, Defendant, the attorneys of record for the Plaintiff and Defendant in
14 this litigation, paralegals employed by counsel for each party, and consultants and experts
15 retained by counsel for each party who have first signed a Confidentiality Agreement in
16 the form annexed hereto as Exhibit A, which agreement should be served upon counsel
17 for the Defendant, and filed with the Court if required in any further proceeding herein.

12.

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It is agreed that, until further order of this Court, or mutual written

19 agreement of the Parties, documents or other information produced by the Defendant will
20 be subject to examination only by counsel of record in this case, their staff, and expert
21 witnesses and consultants retained by them, and that neither the material produced, nor
22 information acquired or extracted from the same will be divulged or made accessible to
23 any competitor, person, news entity, governmental agency, or any other person or entity
24 whatsoever.
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13.

All counsel shall keep all material or information designated as a Protected

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Document which is received under this Stipulated Protective Order within its exclusive

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possession and control, except as provided in paragraphs 10, 11 and 12, and shall take

4 reasonable steps to maintain such material in a secure manner. Except as provided in
5 paragraphs 10, 11 and 12 above, no person shall have access to the foregoing material
6 and information.
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14.

Such confidential documents, materials and information produced, provided

8 or generated by the Defendant in this lawsuit shall be used only for the purpose of this

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Cleveland ♦ Columbus ♦ Denver♦ Los Angeles ♦ San Francisco

9 specific lawsuit and not for any other purpose whatsoever.
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15.

Defendant may move this Court for an order that the evidence at trial be

11 received in such a way as to prevent unnecessary disclosure consistent with applicable
12 law. Absent such additional order of Court, all Parties are entitled to use Protected
13 Documents as evidence in trial without restriction.
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Within fifteen (15) days of final determination of this action, whether by

15 judgment, appeal, settlement or otherwise, counsel for all Parties shall assemble and
16 return to counsel for the Defendant all documents and materials, together with all copies
17 thereof in their possession or subject to their control, including without limitation
18 documents and information provided to all others in accordance with this Protective
19 Order, that reveal or may tend to reveal confidential material or information provided in
20 accordance with this Protective Order. Final determination shall be taken and construed
21 as the date fifteen (15) days following the filing of a stipulated dismissal, or the entry of
22 voluntary dismissal or a final, non-appealable order disposing of this case. Upon such
23 final determination, counsel of record for each party shall notify counsel for the
24 Defendant of compliance. Counsel for each party shall make a reasonable effort to
25 retrieve any document or information has been given, and shall notify counsel for the
26 Defendant of the failure to retrieve any such information. Such notification shall include
27 descriptive detail of any document not returned.
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17.

Any breach of this Protective Order by any person shall be punished as a
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contempt of court. All other civil remedies for breach of this Protective Order are

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specifically reserved by and are not waived by the disclosure provided for herein.

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Further, in the event of a breach of the Confidentiality Agreement by an expert retained

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by any party or its counsel, the Defendant may pursue all civil remedies available to it as

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a third party beneficiary of the Protective Order, whether against the party, the party’s

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attorney, and/or any experts to whom this information is divulged, individually and/or

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jointly.

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Cleveland ♦ Columbus ♦ Denver♦ Los Angeles ♦ San Francisco

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18.

Any party for good cause shown may apply to the Court for modification of

this Protective Order, or the Protective Order may be modified by consent of the Parties

10 in writing. This Protective Order shall remain in full force and effect and each party
11 subject to this order shall continue to be subject to the jurisdiction of this court, for the
12 purposes of enforcement of the confidential terms of this order, in perpetuity. The Court
13 shall not be divested of the power to enforce the confidentiality terms of this order as to
14 any person subject to the terms of this order by the occurrences of the final determination
15 of this case, or by the filing of a notice of appeal, or other pleading which would have the
16 effect of divesting this Court of jurisdiction of this matter generally.
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Dated: June 29, 2011

WARDA & YONANO

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By:/s/ Nicholas Yonano
[as authorized on 6/29/2011]
Nicholas Yonano (SBN 157277)
Attorney for Plaintiff
JAMES L. NORTON

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Dated: June 29, 2011

TUCKER ELLIS & WEST LLP

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By:/s/ Mollie F. Benedict
Mollie F. Benedict (SBN 187084)
Attorney for Defendant
INDEPENDENCE TECHNOLOGY,
L.L.C.

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ORDER

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TUCKER ELLIS & WEST LLP

Cleveland ♦ Columbus ♦ Denver♦ Los Angeles ♦ San Francisco

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IT IS SO ORDERED.

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DATE: July 7, 2011

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______________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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TUCKER ELLIS & WEST LLP

UNITED STATES DISTRICT COURT

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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EASTERN DISTRICT OF CALIFORNIA

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11 JAMES L. NORTON,
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Case No. 2:10-cv-03218-MCE-JFM

Plaintiff,
CONFIDENTIALITY AGREEMENT
(EXHIBIT A)

v.

14 INDEPENDENCE TECHNOLOGY, LLC,

a Johnson & Johnson Company and DOES

15 1-50, inclusive,

Defendant.

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The undersigned, having read and understood the Stipulated Protective Order

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governing the restricted use of Documents of Defendant and any information derived

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therefrom, hereby agrees to be bound by the terms thereof; understands that any

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disclosure of the Documents or any information derived therefrom constitutes contempt

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of court; and agrees to submit to the personal jurisdiction of this Court to enforce the

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Protective Order against the undersigned.

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Dated:

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By:
Name:

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Title:

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