Hertel v. Focus Consumer Healthcare, LLC, et al

Filing 16

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 11/19/18. (Benson, A.)

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Michael T. Fraser (SBN 275185)
[e-mail]
THE FRASER LAW FIRM, P.C.
4120 Douglas Blvd., #306-262
Granite Bay, California 95746
Tel: [phone]
Fax: [phone]
Gillian L. Wade (SBN 229124)
[e-mail]
Sara D. Avila (SBN 263213)
[e-mail]
Andrew Whitman (SBN 312244)
[e-mail]
MILSTEIN JACKSON FAIRCHILD &
WADE LLP
10250 Constellation Blvd., 14th Fl.
Los Angeles, California 90067
Tel: [phone]
Fax: [phone]

Christopher M. Young (SBN 163319)
[e-mail]
Ashleigh Angeletti (SBN 265392)
[e-mail]
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, California 92101-4297
Tel: [phone]
Fax: [phone]
Attorneys for Defendants
FOCUS CONSUMER
HEALTHCARE, LLC and
CHATTEM, INC.

Attorneys for Plaintiff
Leland Rex Hertel and the Putative Class
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

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LELAND REX HERTEL, individually,
on behalf of himself and others similarly
situated,

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Plaintiff,
v.
FOCUS CONSUMER HEALTHCARE,
LLC and CHATTEM, INC.,

CASE NO. 2:18-cv-01176-MCE-KJN
STIPULATED PROTECTIVE
ORDER
Dept.: 7
Judge: Hon. Morrison C. England, Jr.

Defendants.

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CASE NO. 2:18-CV-01176-MCE-KJN
STIPULATED PROTECTIVE ORDER

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Plaintiff Leland Rex Hertel, individually, on behalf of himself and others

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similarly situated (“Plaintiff”) and Defendants Focus Consumer Healthcare, LLC

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and Chattem, Inc. (“Defendants”), by and through their counsel of record, hereby

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stipulate and agree that the terms and conditions of this Stipulated Protective Order

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(the “Order”) shall be applicable to and govern depositions, documents, and other

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tangible things produced in response to initial disclosures, requests for production,

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answers to interrogatories, responses to requests for admissions, and all other

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discovery taken in the above-captioned action (hereinafter “the Action”) or

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produced in connection with the Action by a third-party witness who designates the

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production as confidential hereunder.

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IT IS HEREBY ORDERED as follows:

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1.

Designation of Confidential Materials. Any party or non-party to

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this Action (hereinafter a “Designating Party” and “Designating Non-Party,”

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respectively) shall have the right to designate as “CONFIDENTIAL” any

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document produced in this Action that the Designating Party or Designating

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Non-Party considers in good faith to contain (1) trade secrets; (2) non-public

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financial information; (3) proprietary technology; (4) proprietary business

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processes; and/or (5) information that is not generally known to the public

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(“Confidential Material”). Where a document or response consists of more

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than one page, the first page and each page on which Confidential Material

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appears shall be so designated.

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2.

Restriction on Disclosure of Confidential Materials. No

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Confidential Material shall be disclosed to any person or entity except as set

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forth in this Order. Persons obtaining access to Confidential Material under

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this Order shall use the information solely for the purposes of litigating the

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Action, and shall NOT use any such information for any other purpose in any

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manner or degree at any time, including but not limited to its use in any

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business, commercial or economic activity. The restrictions on use of
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Confidential Materials set forth in this Order shall survive the conclusion of

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this matter, and after conclusion of this matter, the Court shall retain

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jurisdiction for the purpose of enforcing this Order. No copies of Confidential

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Material shall be made except by or on behalf of counsel of record for their

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own use. All such copies shall be subject to the provisions of Paragraph 15

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hereof. No Confidential Material will be disclosed to any person who is

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required under the terms of this Order to execute a non-disclosure agreement,

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the form of which is attached hereto as Attachment 1, unless and until such

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person executes the non-disclosure agreement. If the person refuses to sign

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such non-disclosure agreement, any party may seek judicial assistance to

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compel that person to be bound by the terms of this Order.

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3.

Marking of Confidential Material. Documents that any party

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wishes to protect against unauthorized disclosure or use as Confidential

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Material shall be marked by placing the following legend on the documents:

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CONFIDENTIAL:

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(a)

Request for Production of Documents. In the case of

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documents produced pursuant to a Request for Production of Documents, by

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stamping or writing “CONFIDENTIAL” on the front of any document before

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production;

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(b)

Responses to Interrogatories and Requests for Admissions.

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In the case of responses to Interrogatories and Requests for Admissions, by

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stamping or writing on the front of any set of responses the phrase

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“CONTAINS CONFIDENTIAL INFORMATION;”

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(c)

Depositions. Portions of deposition transcripts and

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documents produced at deposition may be designated “CONFIDENTIAL”

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either (a) during the deposition, in which case the transcript of the designated

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testimony shall be bound in a separate volume and marked by the reporter as

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“CONFIDENTIAL,” or (b) by written notice to the reporter and to all counsel
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of record within thirty (30) days after the court reporter mails notice to the

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defendant that the transcript has been prepared, in which case all counsel

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receiving such notice shall be responsible for marking the copies of the

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designated transcript in their possession or under their control as directed by

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the Designating Party. On a case-by-case basis, following a deposition, the

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Designating Party may request that the parties agree to treat the transcript as if

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it has been designated as Confidential Material, pending the expiration of

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thirty (30) days after notice of preparation of the deposition transcript. If no

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such designation is made within thirty (30) days, the transcript shall be

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considered not to contain any confidential information subject to this Order.

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The Designating Party has the right to have all persons, except the

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deponent and his or her counsel, the named parties, counsel of record for named

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parties, the court reporter, and such other persons as are permitted under Paragraphs

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5 and 6 herein, excluded from a deposition, or any portion thereof before the taking

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of testimony which the Designating Party designated as “CONFIDENTIAL” under

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this Order.

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(d)

Nonparty Production: A non-party may designate as

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“CONFIDENTIAL” documents or discovery materials produced by a

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nonparty at the time of production. A party may designate as

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“CONFIDENTIAL” documents or discovery materials produced by a

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nonparty by providing written notice to all parties of the relevant document

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numbers or the identification thereof within thirty (30) days after receiving

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such documents or discovery materials. On a case-by-case basis, following a

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deposition, the Designating Party may request that the parties agree to treat

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the transcript as if it has been designated as Confidential Material, pending

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the expiration of thirty (30) days after notice of preparation of the deposition

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transcript. If no such designation is made within thirty (30) days, the

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nonparty documents shall be considered not to contain any confidential

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information subject to this Order.

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4.

Filing Designated Materials. Before any Confidential Material is

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filed with the Court for any purpose, the party seeking to file such material

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shall seek permission of the Court to file said material under seal. The parties

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will follow and abide by applicable law, including L.R. 141 with respect to

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filing documents under seal in this Court.

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5.

Access to “CONFIDENTIAL” Material. Disclosure of materials

designated “CONFIDENTIAL” for the purpose of conducting this litigation

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may be made only as follows:

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(a)

to the named parties to this action;

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(b)

to any directors or officers or employees of Defendants;

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(c)

to counsel of record and their employees;

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(d)

to persons requested by counsel of record to assist in

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conducting this litigation;

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(e)

testimony during these proceedings is obtained or sought; and

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to any person not included in (a) through (d) above whose

(f)

to the Court (and its officers).

No disclosure shall be made to any person or entity specified in paragraph

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5(d) and/or 5(e) until such person or entity to whom Confidential Materials are

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disclosed executes the non-disclosure agreement attached hereto as Attachment 1.

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6.

Disclosure of Confidential Materials to Deponents or Witnesses.

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A deponent or witness may, during a deposition or trial, be shown and be

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examined about information so designated as “CONFIDENTIAL,” or any

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part or portion thereof, if the deponent or witness: (i) appears as the author or

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as an addressee on the face of the document; (ii) or previously rightfully

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obtained knowledge of the document containing the information; (iii) or

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previously rightfully learned the information contained therein; (iv) or the
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procedures as set forth in paragraph 5 above have been followed and the

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deponent or witness has executed the non-disclosure agreement attached

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hereto as Attachment 1; (v) or is a current employee or agent of the

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Designating Party, provided that counsel taking the deposition shall first

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disclose the Confidential Material to counsel for the Designating Party

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outside of the presence of the witness. With the exception of certified, expert

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witnesses (otherwise subject to the terms of this Order), such deponent or

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witness may NOT retain any Confidential Materials or copies thereof.

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7.

Procedure for Seeking/Prohibiting Additional Disclosures. Prior

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to any disclosure of material designated “CONFIDENTIAL,” other than as

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provided in paragraphs 2, 4, 5 and 6 herein, counsel desiring to make such a

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disclosure shall provide written notice to counsel for the Designating Party of

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its intent to make the disclosure, stating therein the specific material to be

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disclosed and the name, address, and position of the person to whom the

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disclosure is being made. If the Designating Party objects to the disclosure,

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the party seeking the additional disclosure must file a motion with the Court

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to disclose the Confidential Material outside the scope of this Order. Until the

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Court rules on the motion, the Confidential Materials shall not be disclosed.

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8.

Limitation Upon Scope of Order. Nothing contained in this

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Order shall affect the right of any Designating Party to disclose or use for any

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purpose the documents or information it produced and designated as

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“CONFIDENTIAL”. This Order shall not limit or affect the rights of any

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party to use or disclose any material or thing that has not been obtained

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through, or derived as a result of, the Action.

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9.

No Admission by Non-Designating Party. Treatment by

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opposing counsel or party in conformity with the indicated designation of

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“CONFIDENTIAL” shall not be construed in any way as an admission or

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agreement by any party that the designated disclosure constitutes or contains

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any Confidential Materials of any other party or witness.

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10.

Procedure for Modification of Order/Objection to Designation.

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No party to this action shall be obligated to challenge the propriety of any

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designation by any other party or witness, and a failure to do so shall not

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constitute a waiver or in any way preclude a subsequent challenge in this or

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any other action to the propriety of such designations. Any party objecting to

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the designation of Confidential Material must give counsel for the

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Designating Party written notice of its reasons for the objection and the

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parties shall attempt to resolve their differences. Failing resolution, the party

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objecting to the designation of Confidential Material may move the Court in

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writing (by means of a formal motion) for an Order removing or changing the

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designation. Disputed material shall be treated as Confidential Material until

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the dispute is resolved.

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This Order shall be interpreted in a manner that does not unduly restrict any

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party’s conduct in the Action. In addition, the parties recognize that other situations

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not adequately addressed in this Order may arise, and that a need for its

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modification is not unlikely.

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11.

No Effect on Admissibility. Nothing herein shall be construed to

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affect in any way the admissibility of any document, testimony or other

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evidence at trial.

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12.

Disposition of Designated Materials at the End of Case. Within

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sixty (60) days of the final adjudication (including any appellate proceedings)

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or other final deposition of the claims at issue herein, and unless otherwise

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agreed in writing by an attorney of record for the Designating Party, counsel

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for each party shall either (1) assemble and return all designated Confidential

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Material in its possession, including all copies thereof, other than Confidential

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Material specifically permitted to be retained by counsel of record, to the
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party or third party witness from whom the designated Confidential Material

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was obtained, or (2) certify in writing that all such Confidential Material has

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been destroyed.

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13.

No Waiver. Neither the review of any Confidential Material by

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counsel, witnesses, deponents, experts, or consultants in this litigation nor the

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inadvertent, unintentional, or in camera disclosure thereof, nor the filing or

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lodging of any such information under seal as set forth above, shall, under any

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circumstances or in any manner or degree at any time, be deemed to be a

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waiver, in whole or in part, of (a) the Designating Party’s contentions of

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confidentiality or objections to production of any of the information so

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designated as “CONFIDENTIAL,” or (b) any opposing party’s contentions or

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objections that any particular information so designated as

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“CONFIDENTIAL” is in fact not Confidential Material. However, nothing

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herein shall defeat any provision of this Order. In addition, nothing herein

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shall be deemed to waive any applicable privilege or work product protection,

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or to affect the ability of a party to seek relief for an inadvertent disclosure of

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material protected by privilege or work product protection.

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14.

Inadvertent Failure to Designate Confidential Material. To the

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extent not inconsistent with Paragraph 3 herein, this paragraph shall govern

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material inadvertently not initially designated “CONFIDENTIAL.” The initial

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failure to designate Confidential Material in accordance with this Order shall

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not preclude any party or third party, at a later date, from designating any

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material “CONFIDENTIAL.” In the event of an inadvertent failure to

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designate Confidential Material, the producing party may within a reasonable

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time after production, provide written notice to counsel of record for the

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receiving party or parties that the material is to be designated as

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“CONFIDENTIAL” pursuant to this Protective Order. Upon receipt of such

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notice, the receiving party shall thereafter treat the material as
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“CONFIDENTIAL,” shall restrict the disclosure or use of such material to

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only those persons qualified pursuant to this Order, and, if such material has

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previously been disclosed to persons not qualified pursuant to the Order, shall

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take reasonable steps to obtain all such previously disclosed material, advise

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such persons of the claims of the confidentiality, and obtain the appropriate

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non-disclosure agreement attached hereto as Attachment 1.

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15.

Breach. Failure to comply with this Order may be punished by

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the contempt powers of the Court and any other appropriate remedies

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determined by the Court.

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16.

Duration of Order. The confidentiality obligations imposed by

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this Order shall remain in effect unless otherwise expressly ordered by the

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Court.

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IT IS SO ORDERED, with the following amendments and clarifications:
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The parties shall comply with the provisions and procedures of

Local Rules 140 and 141 with respect to sealing or redaction requests. To the
extent that the parties’ stipulation conflicts with the Local Rules, the Local
Rules shall govern.

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2.

Prior to filing any motion related to this stipulated protective order

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or other discovery motion, the parties shall first exhaust informal meet-and-

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confer efforts and otherwise comply with Local Rule 251.

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3.

Nothing in this order limits the testimony of parties or non-parties,

or the use of certain documents, at any court hearing or trial—such
determinations will only be made by the court at the hearing or trial, or upon
an appropriate motion.

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4.

Pursuant to Local Rule 141.1(f), the court will not retain

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jurisdiction over enforcement of the terms of this stipulated protective order

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after the action is terminated.

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Dated: November 19, 2018

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