Richard Pohly v. Intuitive Surgical, Inc.

Filing 44

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Maria-Elena James on 12/6/2016. (rmm2S, COURT STAFF) (Filed on 12/6/2016)

1 ALLEN J. RUBY (SBN 47109)
S. SHERYL LEUNG (SBN 238229)

2 SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP

3 525 University Avenue, Suite 1400
Palo Alto, CA 94301

4 Telephone: [phone]
5

Facsimile: [phone]
LISA M. GILFORD (SBN 171641)

6 SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP

7 300 South Grand Avenue
Los Angeles, CA 90071

8 Telephone: [phone]
9

Facsimile: [phone]
Attorneys for Defendant

10 INTUITIVE SURGICAL, INC.
11
12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

No. 3:15-cv-04113 MEJ

15 RICHARD POHLY,
[PROPOSED] PROTECTIVE ORDER

16
17

Plaintiff,
v.

Judge: Hon. Maria-Elena James

18 INTUITIVE SURGICAL, INC., a Delaware

Complaint Filed: September 9, 2015

corporation headquartered in California,

19
Defendant.

20
21
22
23
24
25
26
27
28
1
[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1

WHEREAS pursuant to Federal Rule of Civil Procedure 26, the Court and Plaintiff Richard

2 Pohly (“Pohly”) and Defendant Intuitive Surgical, Inc. (“Intuitive Surgical”) deem it appropriate to
3 limit the disclosure of certain confidential information, as set forth below, and the parties to this
4 Action, by counsel, have stipulated and agreed to give effect to the stipulations set forth below.
5

IT IS HEREBY ORDERED THAT:

6 1.

Definitions.

7

1.1

Challenging Party: a Party or Non-Party that challenges the designation of

8 information or items under this Order.
9

1.2

“CONFIDENTIAL INFORMATION”: is information relating to a party’s or non-

10 party’s trade secrets; research and development information; design and specification information,
11 including without limitation information regarding Intuitive Surgical's robotically-assisted surgery
12 product; confidential business or proprietary information; internal documents regarding marketing
13 or training methods (marketing and training information provided to the public is not deemed
14 confidential); internal sales; financial information or data; technical specifications and mechanical
15 or product information deemed proprietary; manufacturing processes; distribution processes;
16 internal competitive marketing and sales information; and/or personal information.
17

1.3

Designated In-House Counsel: In-House Counsel who seek access to “HIGHLY

18 CONFIDENTIAL-ATTORNEYS EYES ONLY” information in this matter.
19

1.4

Expert: a person with specialized knowledge or experience in a matter pertinent to

20 the litigation who (1) has been retained to serve as an expert witness or as a consultant in this
21 action, (2) is not a past or current employee of a Party or a current employee of a Party’s
22 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or
23 a Party’s competitor.
24

1.5

HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY INFORMATION:

25 extremely sensitive CONFIDENTIAL INFORMATION the disclosure of which to another Party or
26 Non-Party would create a substantial risk of serious harm that could not be avoided by less
27 restrictive means.
28
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[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1

1.6

In-House Counsel: attorneys who are employees or a Party or Non-Party to this

2 action, not including Outside Counsel or any other outside counsel.
3

1.7

Outside Counsel: attorneys who are not employees of a party this action but have

4 been retained to represent or advise a Party or Non-Party to this action.
5

1.8

Protected Material: information or tangible things designated as “CONFIDENTIAL

6 INFORMATION” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY.”
7 2.

Coverage. The protections conferred by this agreement cover not only CONFIDENTIAL

8 INFORMATION (as defined above), but also (1) any information copied or extracted from
9 CONFIDENTIAL INFORMATION; (2) all copies, excerpts, summaries, or compilations of
10 CONFIDENTIAL INFORMATION; and (3) any testimony, conversations, or presentations by
11 parties or their counsel that might reveal CONFIDENTIAL INFORMATION. However, the
12 protections conferred by this agreement do not cover information that is in the public domain.
13 3.

Discovery Material. Documents, discovery responses, including interrogatory responses,

14 responses to requests for admission, etc., deposition testimony, photographs, videotapes, data and
15 other materials, or portions thereof, produced in discovery in this Action by any party or non-party
16 (the “Designating Party”) may be designated as “CONFIDENTIAL INFORMATION” if the
17 Designating Party reasonably and in good faith believes they contain trade secrets or confidential
18 research, development, commercial, personal, financial, or proprietary information, medical
19 records, or other confidential information not already part of the public domain, including all
20 material, data, and information obtained, derived, or generated from such materials.

Such

21 information shall be deemed “CONFIDENTIAL INFORMATION” and shall be subject to the
22 provisions of this Protective Order (the “Protective Order”). Any party in receipt of such produced
23 materials shall be responsible for safeguarding all produced materials and information designated
24 CONFIDENTIAL INFORMATION and, among other things, agrees not to host or post the
25 CONFIDENTIAL INFORMATION on unencrypted, cloud-based data share services utilizing
26 caching technology such as Dropbox.
27 4.

Designation as Attorney’s Eyes Only. CONFIDENTIAL INFORMATION which is of

28 such a competitively sensitive nature that its disclosure to a party or a non-party would cause the
3
[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1 Designating Party a substantial risk of serious competitive harm may be designated “HIGHLY
2 CONFIDENTIAL – ATTORNEY’S EYES ONLY.” CONFIDENTIAL INFORMATION
3 designated “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” is subject to the
4 provisions of this Order governing CONFIDENTIAL INFORMATION, except that its disclosure
5 shall be restricted as stated in paragraph 8.2, below.
6 5.

Designation Process. The designation of Protected Material described in paragraph 1

7 above shall be made by stamping or labeling the document or portions thereof containing
8 CONFIDENTIAL INFORMATION with the legend “CONFIDENTIAL-SUBJECT TO
9 PROTECTIVE ORDER” or, as appropriate, “HIGHLY CONFIDENTIAL – ATTORNEY’S
10 EYES ONLY” prior to its production or, if inadvertently produced without a legend, by furnishing
11 written notice of the inadvertent production specifically identifying documents which should have
12 contained the legend. Protected Material may also be designated:
13

(a)

in answers to interrogatories and responses to requests for admissions containing

14

CONFIDENTIAL INFORMATION by including the words “CONFIDENTIAL

15

INFORMATION/SUBJECT TO PROTECTIVE ORDER” or, as appropriate,

16

“HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY “to each page that

17

contains CONFIDENTIAL INFORMATION. If only a portion or portions of the

18

material on a page qualifies for protection, the Designating Party must clearly

19

identify the specific portions in the specific answers to interrogatories or responses

20

to requests for admissions containing Protected Material; and

21

(b)

as to Protected Material disclosed by a third party, by notifying all parties within

22

twenty (20) days of receipt of such information that the information, or portions

23

thereof, contain Protected Material .

24 6.

Depositions and Other Pretrial and Trial Proceedings. Protected Material may be used

25 or marked as exhibits in depositions or other pretrial or trial proceedings but shall remain subject to
26 this Protective Order. In the case of deposition testimony or testimony made during hearing,
27 counsel must note on the record that responses to particular questions or series of questions contain
28 or may contain Protected Material and request the reporter to mark the first page of the deposition
4
[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1 or hearing transcript as “CONTAINING CONFIDENTIAL INFORMATION.” Parties may also
2 designate portions of the transcript as Protected Material within twenty (20) days of receipt of the
3 transcript by giving written notification to the opposing party and the court reporter. If a non4 party’s Protected Material is used in any manner at a deposition, the portions of the transcript
5 referencing such information shall be designated “CONFIDENTIAL.” Only those portions of the
6 transcript

designated

as

“CONFIDENTIAL”

shall

be

considered

CONFIDENTIAL

7 INFORMATION or, as appropriate, HIGHLY CONFIDENTIAL– ATTORNEY’S EYES ONLY.
8 Until expiration of the 20-day period, the entire deposition will be treated as HIGHLY
9 CONFIDENTIAL-ATTORNEY’S EYES ONLY under this Protective Order. Attendance at
10 portions of depositions at which Protected Material may be disclosed shall be limited to those
11 persons authorized to view it under paragraph 8 below and only after the person[s] follow the
12 procedure described in paragraph 7 below.
13 7.

Authorized and Unauthorized Uses of Protected Material. Protected Material shall be

14 kept confidential, shall not be used, directly or indirectly, by any party for any business,
15 commercial or competitive purpose, or for any purpose other than the preparation and trial of this
16 Action in accordance with the provisions of this Protective Order without the express written
17 consent of counsel for the Designating Party or by order of the Court.
18

(a)

Nothing herein shall prevent the parties from publicly disclosing any of their own

19

Protected Material, as they deem appropriate. Such disclosures shall not affect any

20

confidential designation made pursuant to the terms of this Protective Order so long

21

as the disclosure is made in a manner which is reasonably calculated to maintain the

22

confidentiality of the information.

23

(b)

To avoid security risks currently inherent in certain current technologies and

24

facilities’ compliance with the terms of this Protective Order, and unless the party

25

whose Protected Material is at issue agrees otherwise in writing, all persons given

26

access to Protected Material as outlined in paragraph 8 below, shall keep all such

27

information confidential from all other persons except as specifically provided in

28

this Protective Order.
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[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1 8.

Access to and Use of Protected Material.

2

8.1

CONFIDENTIAL INFORMATION may be disclosed only to the following persons

3

(a)

Parties and parties’ counsel and the clerical, technical, paralegal, and secretarial

4

staff employed or retained by such counsel and the parties’ insurers, if any, who

5

need to review such information in connection with this Action;

6

(b)

Experts, consultants, and case-specific medical treaters whose assistance is

7

necessary to assist counsel of record in the preparation of this case, or to testify in

8

this action provided any such persons follow the procedure described in paragraphs

9

9 and 10 below;

10

(c)

A deponent or a witness at trial or hearing, provided there is a reasonable basis to

11

believe the disclosure is necessary to prepare the witness or that the witness will

12

give relevant testimony regarding the CONFIDENTIAL INFORMATION. If a

13

party wishes to show CONFIDENTIAL INFORMATION to a deponent in

14

preparation for a deposition, the party must follow the procedure described in

15

paragraph 9 before disclosing the CONFIDENTIAL INFORMATION. If a party

16

wishes to disclose CONFIDENTIAL INFORMATION to a deponent under this

17

provision, notice and an opportunity to object must be afforded to the Designating

18

Party. If the disclosure is at a deposition, notice may be given at the deposition;

19

(d)

The Court or any Court personnel, including court reporters;

20

(e)

A person identified in the document as a subject of the communication, or having

21
22

authored or previously received the document;
(f)

Copy or imaging services retained by counsel to assist in the duplication of

23

CONFIDENTIAL INFORMATION, provided that counsel for the party retaining

24

the copy or imaging service instructs the service not to disclose any

25

CONFIDENTIAL INFORMATION to third parties and to immediately return all

26

originals and copies of any CONFIDENTIAL INFORMATION; and

27

(g)

Any person mutually agreed upon among the parties.

28
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[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1

8.2

HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY information may only be

2 disclosed to the following:
3

(a)

4
5

Outside Counsel and the clerical, technical, paralegal, and secretarial staff employed
or retained by such counsel;

(b)

Experts, consultants, and case-specific medical treaters

whose assistance is

6

necessary to assist Outside Counsel in the preparation of this case, or to testify in

7

this action;

8

(c)

9

One Designated In-House Counsel tasked with the primary responsibility of
supervising this litigation of the party that received the information to whom

10

disclosure is reasonably necessary for this litigation.

11

HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY INFORMATION to

12

Designated In-House Counsel, Outside Counsel for the party that employs the

13

Designated In-House Counsel shall obtain a written declaration from the Designated

14

In-House Counsel that attests that Designated In-House Counsel will not use any

15

HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY INFORMATION

16

received in this litigation for any purpose other than the litigation.

17

(d)

Prior to disclosure of

Employees of a party to whom disclosure is reasonably necessary for this litigation

18

and who have previously worked on projects with the Disclosing Party utilizing the

19

technology that is the subject of the HIGHLY CONFIDENTIAL-ATTORNEY’S

20

EYES

21

CONFIDENTIAL-ATTORNEY’S

22

employees, Outside Counsel for the party that employs the employees to whom

23

disclosure

24

INFORMATION is sought shall obtain a written declaration from such employees

25

that they will not use any HIGHLY CONFIDENTIAL-ATTORNEY’S EYES

26

ONLY INFORMATION received in this litigation for any purpose other than the

27

litigation.

28

(e)

ONLY

of

INFORMATION.

HIGHLY

EYES

Prior

to

ONLY

disclosure

of

INFORMATION

CONFIDENTIAL-ATTORNEY’S

EYES

HIGHLY
to

such

ONLY

The Court or any Court personnel, including court reporters;
7

[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1

(f)

2

A person identified in the document as a subject of the communication, or having
authored or previously received the document;

3

(g)

Copy or imaging services retained by counsel to assist in the duplication of

4

Protected Material, provided that counsel for the party retaining the copy or imaging

5

service instructs the service not to disclose any Protected Material to third parties

6

and to immediately return all originals and copies of any Protected Material; and

7

(h)

Any person mutually agreed upon between the Designating Party and the party

8

seeking to disclose HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY

9

INFORMATION.

10 9.

Persons Bound by Order. Before being given access to any Protected Material, each

11 person to whom it will be disclosed, other than the court and court personnel, shall be advised of
12 the terms of this Protective Order, shall be given a copy of this Protective Order, and shall agree in
13 writing to be bound by the terms of this Protective Order by signing a copy of the attached
14 Acknowledgment (Exhibit A). Counsel for each party shall maintain a list of all persons to whom
15 they or their client(s) have provided any Protected Material, which list shall be available for
16 inspection by the Court.
17 10.

Collateral Litigants. This Protective Order does not allow for the automatic disclosure of

18 CONFIDENTIAL INFORMATION to attorneys for plaintiffs in other lawsuits asserting claims
19 against Intuitive Surgical in connection with their da Vinci surgeries relating to the same surgical
20 procedure and version of EndoWrist® instruments (“Collateral Litigants”). To the extent Pohly
21 wishes to share CONFIDENTIAL INFORMATION with Collateral Litigants, the identity of such
22 Collateral Litigants and their attorneys must be identified to the Designating Party in writing in
23 advance of disclosure. Upon receiving written notice of intended disclosure, the Designating Party
24 shall have ten (10) court days to object to the disclosure of the documents to the Collateral
25 Litigants or their attorneys identified by Pohly's counsel to whom the Designating Party contends
26 disclosure is inappropriate under the Protective Order and state the grounds for the objection. If
27 the parties cannot resolve the dispute, the Designating Party may seek resolution of its objection by
28 this Court, which will decide whether to modify the Protective Order so that such identified
8
[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1 Collateral Litigants are not precluded from obtaining the CONFIDENTIAL INFORMATION. The
2 Collateral Litigants and/or Plaintiff have the burden to demonstrate the relevance of the
3 CONFIDENTIAL INFORMATION to the collateral proceedings and its general discoverability
4 therein.

Any dispute regarding the ultimate discoverability of the CONFIDENTIAL

5 INFORMATION in the other lawsuits pressed by Collateral Litigants must be resolved by the
6 presiding judges in the respective collateral courts.
7 11.

Non-Disclosure to Competitors. No Protected Material shall be disclosed to any person

8 who, upon reasonable and good faith inquiry, could be determined to be a Competitor of the
9 Designating Party, unless plaintiff has retained such person as a consultant or expert in this Action,
10 but then only after notifying the Designating Party of the person retained in advance of any such
11 disclosure and allowing the Designating Party ten (10) court days to move the court for an order
12 preventing the disclosure of such Protected Material to the Competitor. If the Designating Party
13 moves for an order to prevent disclosure under this Paragraph, no disclosure shall be made until the
14 Court rules on the motion. With respect to Intuitive Surgical, "Competitor" shall mean any person
15 or entity engaged in the business of designing, manufacturing and/or selling robotic surgical
16 systems, instruments for robotic surgical systems or component parts for use with such systems and
17 instruments, including but not limited to any director, officer, employee or consultant of such
18 Competitor entity. Intuitive Surgical shall not introduce evidence of the disqualification of any of
19 plaintiff's proposed experts under this section at trial. Any person who receives Confidential
20 Information under this Protective Order shall be prohibited from using it to compete with the
21 Designating Party.
22 12.

Use of Confidential Information at Trial. Information identified as “CONFIDENTIAL

23 INFORMATION” in accordance with this Protective Order may be disclosed in testimony at the
24 trial of this Action or in other proceedings in this matter, subject to the rules of evidence and to
25 such further orders this Court may enter.
26 13.

Use of Confidential Information In Court. PROTECTED MATERIAL is not to be filed

27 with the Court, except when required in connection with motions or other matters pending before
28 the Court and subject to compliance with the procedures set forth in with Local Rule 79-5 as
9
[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1 modified by this Paragraph. Prior to filing, the party seeking to file PROTECTED MATERIAL in
2 support of a motion or other matter pending before the Court must first notify all parties of its
3 intent to file PROTECTED MATERIAL and provide a copy of the motion and PROTECTED
4 MATERIAL to the Designating Party. The Designating Party or the party who has a right to the
5 subject matter of the PROTECTED MATERIAL will have seven (7) court days to file an
6 administrative motion to seal in accordance with Civil Local Rule 7-11. Any response or reply to
7 the motion to seal, or underlying motion, shall also be filed in accordance with Civil Local Rule 78 11. If no motion is filed within seven (7) court days, the party intending to use the PROTECTED
9 MATERIAL may file its motion and PROTECTED MATERIAL with the Court. If a motion to
10 seal is filed, the parties shall wait for the Court’s determination of the motion to seal before taking
11 further action. In the event that a party determines it needs to file PROTECTED MATERIAL in
12 response to a non-dispositive motion or to file PROTECTED MATERIAL in reply in support of a
13 non-dispositive motion, the parties will agree to adjust the hearing date to allow sufficient time for
14 the motion to seal to be at issue before the Court on or before the hearing date on the underlying
15 motion.
16 14.

Inadvertent Failure to Designate as Confidential Information. Inadvertent failure to

17 designate documents or information as CONFIDENTIAL INFORMATION shall not constitute a
18 waiver of the Designating Party’s claim to confidentiality, provided that the Designating Party shall
19 promptly notify the receiving party in writing within ten (10) court days of such discovery. Upon
20 receipt of such notice, each receiving party shall treat the material identified in the notice as
21 CONFIDENTIAL INFORMATION, consistent with the terms of this Protective Order. Each
22 receiving party shall further notify every person or organization that received copies of or access to
23 the material identified in the notice that such material contains CONFIDENTIAL
24 INFORMATION, as defined by this Protective Order.
25 15.

No Waiver of Privilege. This Protective Order does not affect or constitute a waiver of

26 any party’s right to withhold or redact information protected from disclosure by the attorney-client
27 privilege, work product doctrine, or other applicable legal privilege. Inadvertent production
28 of confidential documents subject to work-product immunity, the attorney-client privilege, or other
10
[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1 legal privilege protecting information from discovery shall not constitute a waiver of the immunity
2 or privilege. The party discovering the inadvertent production shall promptly notify the receiving
3 party in writing when it becomes aware of such inadvertent production. Within five (5) court days
4 of receiving such notice, such inadvertently produced documents and all copies thereof, as well as
5 all notes or other work product reflecting the contents of such materials, shall be returned to the
6 Producing Party or destroyed, upon request, and such returned or destroyed material shall be
7 deleted from any litigation-support or other database. No use shall be made of such documents
8 during deposition or at trial, nor shall they be shown to anyone who was not given access to them
9 prior to the request to return or destroy them, unless otherwise permitted by the Court.
10

15.1

No less than twenty (20) court days after providing notification of inadvertently

11 disclosed information, the Producing Party shall produce a privilege log listing such information.
12

15.2

The receiving party may move the Court for an order compelling production of the

13 inadvertently disclosed information. Such motion shall be filed under seal in accordance with
14 Local Rule 79-5 and shall not assert as a ground for entering such an order the fact or
15 circumstances of the inadvertent production. On any such motion, the Producing Party shall retain
16 the burden of establishing its privilege or work product claims. Nothing in this paragraph shall
17 limit the right of any party to petition the Court for an in camera review of the inadvertently
18 disclosed information.
19 16.

Order Survives Termination of Action. This Protective Order shall remain in full force

20 and effect and survive the entry of any other order resulting in termination of this Action, unless
21 this Protective Order is expressly modified or vacated by the Court, with all parties and non-parties
22 who have produced Confidential Information having had notice and an opportunity to be heard.
23 17.

Disposition of Protected Materials. After the final conclusion of this Action, and to the

24 extent permitted by law, the Parties, their counsel, and Consultants who have received
25 PROTECTED MATERIAL from another party or non-party shall either return or destroy all
26 materials designated as PROTECTED MATERIAL, including copies, extracts, and summaries
27 thereof, within sixty (60) days of the request to do so. This provision does not apply to (1) copies
28 of any pleadings or other papers that have been filed with the Court; (2) any work product deemed
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[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1 “Confidential”; or (3) any documents designated “CONFIDENTIAL INFORMATION” with
2 respect to which confidentiality has been successfully challenged in accordance with paragraph 19,
3 below. The party or non-party which produced the PROTECTED MATERIAL shall keep and
4 maintain an electronic copy of all such PROTECTED MATERIAL produced in this case for a
5 period of five (5) years after the final conclusion of this case.
6 18.

Court Retains Jurisdiction.

The Court shall retain jurisdiction over all persons or

7 organizations authorized under paragraph 8 to receive CONFIDENTIAL INFORMATION for the
8 limited purpose of enforcing such return and enforcing the continuing obligations of confidentiality
9 imposed by this Order.
10 19.

Challenges to Confidentiality Designation. If a party disagrees with the designation of

11 materials

or

information

as

“CONFIDENTIAL

INFORMATION,”

or

“HIGHLY

12 CONFIDENTIAL-ATTORNEYS EYES ONLY” the party challenging the designation, the
13 Designating Party, and any other interested party or non-party shall first try in good faith to
14 informally resolve the dispute. The party challenging the designation shall provide the Designating
15 Party and any other party or non-party a written request, by letter or email, identifying the
16 documents or information which it believes should have the designation removed and stating the
17 specific reasons that party does not believe the materials or information were properly designated.
18 If it becomes necessary for the Court to resolve the dispute, any party or non-party seeking to
19 enforce the designation may file a motion to preserve the designation no more than ten (10) court
20 days after the parties’ informal attempts to resolve the issue have failed. Any response or reply to
21 the motion to seal, or underlying motion, shall also be filed in accordance with Local Rule 79-5. A
22 failure to file a motion within ten (10) court days shall constitute a waiver of the designation. The
23 party or non-party seeking to enforce the designation shall make its filing pursuant to Local Rule
24 79-5. Pending the Court’s decision on the motion, the information designated as CONFIDENTIAL
25 INFORMATION

or

HIGHLY

CONFIDENTIAL

–

ATTORNEY’S

EYES

ONLY

26 INFORMATION shall be treated as though it were CONFIDENTIAL INFORMATION or
27 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY INFORMATION within the meaning
28 of this Protective Order. With respect to any motions relating to the confidentiality of documents
12
[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1 or related information, the burden of justifying the designation shall lie with the party or non-party
2 seeking to enforce the designation. All parties retain the right to appeal the decision of the Court.
3 20.

Subpoena by Other Courts or Agencies. If a party (or its agent, officer, employee,

4 representative, or attorney) receives a discovery request, subpoena, or other process seeking
5 disclosure of PROTECTED MATERIAL, the party shall:
6

20.1

Immediately notify in writing, via overnight mail or email, the party, person, or

7 entity who has designated the requested information or documents as “CONFIDENTIAL
8 INFORMATION”

or

HIGHLY

CONFIDENTIAL

-

ATTORNEY’S

EYES

ONLY

9 INFORMATION that such a request has been made, shall provide a copy of the subpoena or court
10 order, and shall provide that party with an opportunity to file a motion for protective order or take
11 other appropriate action prior to producing the requested information or documents;
12

20.2

Promptly notify in writing the party who caused the subpoena or order to issue that

13 some or all of the material covered by the subpoena or order is subject to this agreement. Such
14 notification shall include a copy of this agreement.
15 21.

Modification Permitted. Nothing contained in this Protective Order shall prejudice the

16 right of any party to seek modification or amendment of this Protective Order by further Court
17 order, upon motion and notice.
18
19
20
21
22
23
24
25
26
27
28
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[PROPOSED] PROTECTIVE ORDER

Case No. 5:15-CV-04113-MEJ

1
2
3

IT IS SO ORDERED.
December 6
DATED __________________, 2016

_________________________________
Honorable Maria-Elena James

4
5 Through the undersigned counsel, the parties consent to entry of this Order:
6
7

Dated: November 16, 2016

8
9
10
11

/s/ Peter J. Mullenix
Richard Friedman (CA State Bar # 221622)
Peter J. Mullenix (pro hac vice)
Friedman | Rubin
51 University Street, Suite 201
Seattle, WA 98337
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff

12
13 Dated: November 16, 2016
14
15
16
17

/s/ Sheryl Leung
Allen Ruby (CA State Bar # 47109)
Sheryl Leung (CA State Bar # 238229)
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, CA 94301
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendant

18 Dated: November 16, 2016
/s/ Michael MacPhail
Michael R. MacPhail (CO Bar # 26382)
Faegre Baker Daniels
1700 Lincoln Street, 3200 Wells Fargo Center
Denver, CO 80203
Telephone: [phone]
Facsimile: [phone]

19
20
21
22

Counsel for Non-Party Encision, Inc.

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Case No. 5:15-CV-04113-MEJ

1

EXHIBIT A to PROTECTIVE ORDER

2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5 RICHARD POHLY,
6
7

Plaintiff,
v.

8 INTUITIVE SURGICAL, INC.,
9
10
11

Defendant.

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Case No.: 5:15-CV-04113-MEJ
STIPULATION FOR PROTECTIVE ORDER
Judge: Honorable Maria-Elena James
Complaint Filed: September 9, 2015

I certify that I have read and understood the Protective Order entered in this matter and

12 agree to be bound by the terms thereof, and that I agree not to disclose any CONFIDENTIAL
13 INFORMATION to any person other than as permitted by the Protective Order. I understand that
14 any disclosure of the CONFIDENTIAL INFORMATION, or any information derived therefrom
15 constitutes contempt of court. I further consent to the exercise of personal jurisdiction by the
16 above Court in any proceeding(s) to enforce the terms of the Protective Order.
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Dated this ____ day of _______________________, _________.

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__________________________________
Signature
__________________________________
Printed Name
__________________________________
Address
__________________________________
City and State
__________________________________
Telephone Number

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