Rhynes et al v. Stryker Corporation et al

Filing 57

Order by Hon. Samuel Conti granting 56 Stipulation.(sclc1S, COURT STAFF) (Filed on 8/6/2012)

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SEDGWICK LLP
Mario Horwitz (Bar No. 110965)
[e-mail]
James Nelson (Bar No. 181256)
[e-mail]
801 South Figueroa Street, 19th Floor
Los Angeles, CA 90017-5556
Telephone:
213.426.6900
Facsimile:
213.426.6921
Attorneys for Defendants, Stryker Corporation and
Howmedica Osteonics Corp (sued as Stryker Orthopaedics)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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GLORIA RHYNES and DARRELL JENKINS,

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Plaintiffs,

Case No. 3:10-cv-05619-SC
[PROPOSED] STIPULATED
PROTECTIVE ORDER

v.
STRYKER CORPORATION; STRYKER
ORTHOPEDICS; and DOES 1 through 30,
Inclusive;,
Defendants.

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The undersigned parties to this litigation hereby agree to the terms of this Stipulated

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Protective Order (hereafter, “Protective Order”), as set forth below, and submit it to the Court for

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adoption as an Order upon full execution by counsel on behalf of their respective clients:

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

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

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

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confidential treatment under the applicable legal principles. The parties further acknowledge, as

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set forth in Paragraph 10, below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the

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

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permission from the court to file material under seal.

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1.

Irrespective of the form in which discovery materials are produced, including

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printed or electronically recorded documents, in connection with the discovery process in the

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above-entitled case, including but not limited to, deposition testimony, answers to

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interrogatories, documents produced in response to requests for production, responses to requests

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for admissions, medical records and any documents recorded on computer disks, the parties may

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designate any such materials as “confidential” or “confidential discovery material,” under the

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terms of this stipulated order.

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2.

The parties to this order may designate as “Confidential” or “Trade Secret,”

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pursuant to the terms of this order, documents or other discovery material to the extent they

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consist of or include trade secret or confidential research, development, or commercial

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information and may include financial information, information relating to ownership or control

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of any non-public company, and any information protected from disclosure by any privacy law,

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as well as any other type of information given confidential status by the court.

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3.

Any person subject to this order who receives any confidential discovery material

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in the course of discovery in this action shall not disclose such confidential discovery material to

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anyone else except as expressly permitted by this order.

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4.

With respect to the confidential or trade secret portion of any documents or

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material, other than deposition transcripts and exhibits, the producing party may designate the

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portion as confidential discovery material by stamping or otherwise clearly marking the

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protected page, passage, or item as “Confidential” or “Trade Secret” in such a manner that will

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not interfere with legibility or audibility.

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5.

With respect to deposition transcripts and exhibits, a party may indicate on the

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record that a question calls for confidential discovery material, in which case the text in the

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transcript where these questions or answers occur shall be specially marked as a separate page

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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stamped “Confidential Information Governed By Protective Order” by the court reporter. For

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convenience, the parties may agree that entire deposition transcripts shall be treated as

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confidential discovery material.

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6.

Notwithstanding the provisions of paragraphs 2-4 above, a producing party may

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redact from any Confidential Document any: (i) trade secrets or other highly confidential

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research, development or commercial information that do not relate to the claims or defenses at

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issue, (ii) names and any information that would identify clinical trial subjects or patients (other

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than plaintiff) referred to in product experience reports, consumer names in complaints and other

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similar data and, in accordance with 21 C.F.R. § 20.63(f), the names and any information that

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would identify the voluntary reporter or any other person associated with an adverse event

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involving a human drug, biologic, or medical device product; (iii) home addresses; (iv) personnel

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information not the specific focus of the request, and information about products that are not the

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subject of this litigation.

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7.

If at any time prior to the trial of this action a party realizes that previously

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undesignated documents or other material should be designated as confidential discovery

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material, the party may so designate by advising all other parties in writing. The designated

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documents or material will thereafter be treated as confidential discovery material pursuant to

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this order. However, no party shall be penalized in any way for disclosing such materials prior

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to receiving notice of this belated realization.

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8.

No person subject to this order other than the designating party shall disclose any

confidential discovery material to any other person, except as follows:

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a)

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professional and other staff employed or retained by counsel for work on this action;

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b)

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other person shown on the face of the document as having received a copy;

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c)

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testify at trial or deposition in this action, provided such person has first executed a non-

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disclosure agreement in the form attached to this order;

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Counsel for the parties in this action, including any paralegal, clerical, consulting,

With respect to a specific document, the document's author, addressees, and any

Any witness who counsel for a party in good faith believes may be called to

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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d)

Any person retained by a party to serve as an expert consultant or witness or

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otherwise provide specialized advice to counsel in connection with this action, provided

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such person has first executed a non-disclosure agreement in the form attached as Exhibit

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“A”;

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e)

Official court reporters; and

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f)

The court, mediators, and support personnel.

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9.

Prior to any disclosure of confidential discovery material to any person referred to

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in subparagraphs (c) or (d) of paragraph 8 above, the person shall be provided by counsel with a

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copy of this protective order and shall sign a non-disclosure agreement in the form attached as

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Exhibit “A” hereto. The non-disclosure agreement will state that the person has read this order

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and agrees to be bound by its terms. All non-disclosure agreements will be maintained

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throughout this action by the attorneys obtaining them.

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10.

Without written permission from the producing party or a court order secured

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after appropriate notice to all interested persons, a party may not file in the public record in this

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action any confidential, trade secret or confidential discovery material. A party that seeks to file

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under seal any confidential, trade secret or confidential discovery material must comply with

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Civil Local Rule 79-5. Such material and documents may only be filed under seal pursuant to a

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court order authorizing the sealing of the specific material and documents at issue.

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11.

Any party objecting to any designation of confidentiality or trade secret, or

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requesting further limits on disclosure, may at any time prior to the trial of this action serve upon

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counsel for interested parties a written notice explaining the basis for its belief the designation

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was not proper and give the designating party an opportunity to review the material and

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reconsider the circumstances. If agreement cannot be reached, the dispute will be submitted to

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the court. Until a dispute is resolved, the material designated as “Confidential” or “Trade

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Secret” shall remain as confidential discovery material pursuant to this order. The party

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requesting confidentiality shall have the burden of establishing entitlement to protection and

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confidentiality.

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12.

The court retains discretion to deny confidential treatment to any documents or
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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discovery material submitted in connection with any motion, application, proceeding or paper

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that may result in an order or decision by the court.

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13.

Each person who has access to confidential discovery materials shall take all due

precautions to prevent the unauthorized or inadvertent disclosure of the material.
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If a party is served with a subpoena or court order issued in other litigation

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compelling the production of “Confidential” information, the parties have obtained under the

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terms of this Stipulation and Protective Order, the parties shall promptly notify the Producing

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Party of the pendency of such subpoena or order. In no event shall documents designated as

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“Confidential” be produced prior to the expiration of ten (10) business days following

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confirmation of receipt of written notice by the Producing Party. With respect to any subpoena

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the Producing Party shall have the burden and the expense of seeking the protection, if any, in

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the applicable court. No party will object to the Producing Party having a reasonable opportunity

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to appear in any litigation or proceeding commanding disclosure of such protected material for

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the sole purpose of seeing to prevent or restrict disclosure thereof.

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15.

This order shall survive the termination of this action. Within 30 days of the final

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disposition of this action, all “Confidential” and “Trade Secret” information shall promptly be

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returned to the producing party. Counsel of record shall make certification of compliance that all

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“Confidential” and “Trade Secret” information was returned to producing party not more than 40

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days after final conclusion of this litigation. For purposes of this Order, final conclusion shall be

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taken as the date on which a stipulated dismissal is filed or a final, non-appealable order

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disposing of this lawsuit is entered.

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16.

The court shall retain jurisdiction over all persons and parties subject to this order

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to the extent necessary to modify this order, enforce its obligations, or to impose sanctions for

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any violation.

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17.

Nothing in this order shall prevent any party from seeking further or additional

protection, or removing protection, for confidential discovery material.
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Additional parties may be added to this action as allowed under the Federal Rules

of Civil Procedure. Before receiving confidential discovery material, a new party must agree to
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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be bound by the terms of this order as if the party had stipulated to it at the time of entry. No

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newly added party shall have access to confidential discovery material until the party is subject

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to the terms of this order.

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19.

Information of any kind obtained by parties subject to this order from any source

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outside of discovery in this action shall not be subject to the terms of this order, notwithstanding

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that the same information has been produced in this action and designated as confidential

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discovery material.

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20.

This order shall not apply to, or restrict confidential discovery material used at the

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time of trial as evidence. Protection of confidential discovery material at trial may be addressed

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by the court as a separate matter upon the motion of any party. The provisions of this order shall

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not prejudice the rights of the parties with respect to the use or protection of confidential

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discovery material at trial.

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IT IS SO STIPULATED THROUGH COUNSEL OF RECORD:

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DATED: August 1, 2012

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By: /s/ Steven Anthony
Steven Anthony
Jane Trigero
Attorneys for Plaintiffs

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DATED: August 1, 2012

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SEDGWICK LLP
By: /s/ James Nelson
Mario Horwitz
James Nelson
Attorneys for Defendants

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ANTHONY & ASSOCIATES

PURSUANT TO THE STIPULATION IT IS HEREBY ORDERED.

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August 6
________________, 2012

____________________________________
Honorable Samuel Conti

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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GLORIA RHYNES and DARRELL JENKINS,

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Case No. 3:10-cv-05619-SC

Plaintiffs,

EXHIBIT “A” TO STIPULATED
PROTECTIVE ORDER

v.
STRYKER CORPORATION; STRYKER
ORTHOPEDICS; and DOES 1 through 30,
Inclusive;,

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Defendants.

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I,

, acknowledge that I have read in its entirety and

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understand the Stipulated Protective Order (“Protective Order”) in this action governing the

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non-disclosure of those portions of Confidential Discovery Material that have been designated

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as Confidential or Trade Secret. I agree that I will not disclose such Confidential Discovery

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Material to anyone except as expressly permitted by the Protective Order and only for purposes

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of this action, and that at the conclusion of the action I will return all such Confidential

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Discovery Material to the party or attorney from whom I received it. By acknowledging these

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obligations under the Protective Order, I understand that I am submitting myself to the

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jurisdiction of the United States District Court for the Northern District of California, for the

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purpose of enforcing the terms of this Protective Order, and that my violation of any term of the

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Protective Order could subject me to punishment for contempt of Court, even if such

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enforcement occurs after termination of this action.

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Dated this

day of

, 20__.

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Printed Name

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______________________________

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Signature

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[PROPOSED] STIPULATED PROTECTIVE ORDER

ATTESTATION PURSUANT TO GENERAL ORDER NO. 45

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Pursuant to General Order No. 45 of the Northern District of California, I attest that

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concurrence in the filing of this document has been obtained from the other signatory to this

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document.

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By: /s/ James Nelson
James Nelson

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[PROPOSED] STIPULATED PROTECTIVE ORDER