150 Spear Street Associates L.P. v. VWR International, LLC et al

Filing 56

STIPULATION AND ORDER re 55 STIPULATION WITH PROPOSED ORDER filed by VWR International, LLC. Signed by Judge Jon S. Tigar on December 19, 2017. (wsn, COURT STAFF) (Filed on 12/19/2017)

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BONNIE ALLYN BARNETT
DRINKER BIDDLE & REATH LLP
One Logan Square, Ste. 2000
Philadelphia, PA 19103-6996
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
ADAM J. THURSTON (SBN 162636)
DRINKER BIDDLE & REATH LLP
1800 Century Park East, Suite 1500
Los Angeles, CA 90067-1517
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
KATHLEEN N. STRICKLAND (SBN 64816)
STEPHAN CHOO (SBN 284395)
ROPERS, MAJESKI, KOHN & BENTLEY
150 Spear Street, Suite 850
San Francisco, CA 94105
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
Attorneys for Defendant
VWR INTERNATIONAL, LLC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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150 SPEAR STREET ASSOCIATES,
L.P.,

CASE NO. 3:17-cv-03246-JST
STIPULATED PROTECTIVE ORDER

Plaintiff,

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Judge: Hon. Jon S. Tigar
Complaint Filed: June 6, 2017

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v.

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VWR INTERNATIONAL, LLC;
UNIVAR USA INC.,

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Defendants.

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

STIPULATED PROTECTIVE ORDER

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, all parties have stipulated

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and agreed to the terms and entry of, and the Court hereby orders the parties to abide by this

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Protective Order. Information subject to this Protective Order may be used only for the purposes

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of this litigation.

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1.

PURPOSES AND LIMITATIONS

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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 Stipulated

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

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all disclosures or responses to discovery and that the protection it affords from public disclosure

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and use extends only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth in Section

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12.3, below, that this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and

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the standards that will be applied when a party seeks permission from the court to file material

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under seal. The parties acknowledge that this Protective Order is not intended as a concession that

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any type or category of information is discoverable in this action.
The parties further acknowledge, as outlined in United States District Court Northern

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District of California – Guidelines for the Discovery of Electronically Stored Information (“ESI

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Guidelines”), that this Protective Order will govern discovery of electronically stored information

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(“ESI”) in this case as a supplement to the Federal Rules of Civil Procedure.

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2.

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DEFINITIONS
2.1

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

information or items under this Order.

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“CONFIDENTIAL” Information or Items: information (regardless of how it is generated,

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2.2

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stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil

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Procedure 26(c) and the terms of this Protective Order.

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items that

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it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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2.5

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.6

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

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the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a

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consultant in this action.

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2.7

House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.
2.9

Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this action

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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

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2.10

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.

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2.12

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Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.
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Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

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all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a

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result of publication not involving a violation of this Order, including becoming part of the public

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record through trial or otherwise; and (b) any information known to the Receiving Party prior to

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the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained

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the information lawfully and under no obligation of confidentiality to the Designating Party. Any

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use of Protected Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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The Designating Party must designate for protection only those parts of material, documents,

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items, or oral or written communications that qualify – so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it designated

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for protection do not qualify for protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party

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affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” to each page that contains protected material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each

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portion, the level of protection being asserted.

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has indicated

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which material it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” until a different designation is provided by

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the Producing Party. After the inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the Producing Party

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must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a portion or

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portions of the material on a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must

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specify, for each portion, the level of protection being asserted.

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony and specify the level of protection being asserted. When it is

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impractical to identify separately each portion of testimony that is entitled to protection and it

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appears that substantial portions of the testimony may qualify for protection, the Designating

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Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded)

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a right to have up to 21 days from the date the deposition is completed or from the date the

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deponent or party reviews and corrects the transcript to identify the specific portions of the

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testimony as to which protection is sought and to specify the level of protection being asserted.

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Only those portions of the testimony that are appropriately designated for protection within the 21

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days shall be covered by the provisions of this Protective Order. Alternatively, a Designating

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Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked,

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that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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Parties shall give the other parties notice if they reasonably expect a deposition,

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hearing or other proceeding to include Protected Material so that the other parties can ensure that

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only authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition

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shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the title

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page that the transcript contains Protected Material, and the title page shall be followed by a list

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of all pages (including line numbers as appropriate) that have been designated as Protected

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Material and the level of protection being asserted by the Designating Party. The Designating

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Party shall inform the court reporter of these requirements. Any transcript that is prepared before

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the expiration of a 21-day period for designation shall be treated during that period as if it had

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been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety

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unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as

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actually designated.

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(c) for information produced in some form other than documentary and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior of the container

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or containers in which the information or item is stored the legend “CONFIDENTIAL,”

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of

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the information or item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portion(s) and specify the level of protection being asserted. During the

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inspection and before the designation, all of the material made available for inspection shall be

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deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” until a different

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designation is provided by the Producing Party. Should Producing Party object to the production,

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prior to production the Producing Party shall have fourteen (14) days to request judicial

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intervention of the objection as set forth below in section 7.3, or withdraw its objection and

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produce the requested information.
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. In the event a Designating Party

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inadvertently fails to designate qualified material as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in accordance with the foregoing procedures,

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the Designating Party shall provide supplemental written notice designating the material under the

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appropriate confidentiality designation as soon as practicable and shall also transmit to the

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Receiving Party the qualified material with the appropriate designation as soon as practicable.

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Upon receipt of such supplemental written notice, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

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good faith and must begin the process by conferring directly (in voice to voice dialogue; other

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forms of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in designation is offered,

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to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage

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of the challenge process only if it has engaged in this meet and confer process first or establishes

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that the Designating Party is unwilling to participate in the meet and confer process in a timely

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manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days

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of the initial notice of challenge or within 14 days of the parties agreeing that the meet and

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confer process will not resolve their dispute, whichever is earlier. Each such motion must be

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accompanied by a competent declaration affirming that the movant has complied with the meet

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and confer requirements imposed in the preceding paragraph. Failure by the Designating Party

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to make such a motion including the required declaration within 21 days (or 14 days, if

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applicable) shall automatically waive the confidentiality designation for each challenged

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designation. In addition, the Challenging Party may file a motion challenging a confidentiality

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designation at any time if there is good cause for doing so, including a challenge to the

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designation of a deposition transcript or any portions thereof. Any motion brought pursuant to

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this provision must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding paragraph. The

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Court may indicate a different procedure and the parties are required to follow the protocol set

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by the Court.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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Basic Principles. A Receiving Party may use Protected Material that is disclosed or

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produced by another Party or by a Non-Party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to

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the categories of persons and under the conditions described in this Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in

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a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

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by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the Receiving

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Party to whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors,

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material must be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order; and
(g) the author or recipient of a document containing the information or a custodian or

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other person who otherwise possessed or knew the information.
7.3

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A;

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(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for

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this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A), and (3) as to whom the procedures set forth in paragraph 7.4(b), below, have been followed;

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(c) the Court and its personnel;

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(d) court reporters and their staff, professional jury or trial consultants, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and

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(e) the author or recipient of a document containing the information or a custodian or

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other person who otherwise possessed or knew the information.
7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Counsel or Experts.

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(a) Unless otherwise ordered by the Court or agreed to in writing by the Designating

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Party, a Party that seeks to disclose to House Counsel of the Receiving Party any information or

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item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” first

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must make a written request to the Designating Party that (1) sets forth the full name of the House

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Counsel and the city and state of his or her residence, (2) describes the House Counsel’s current

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and reasonably foreseeable future primary job duties and responsibilities in sufficient detail to

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determine if House Counsel is involved, or may become involved, in any competitive decision-

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making, (3) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” information that the Receiving Party seeks permission to disclose to House

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Counsel, and (4) the reason why such disclosure is reasonably necessary for the litigation. The

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notice must be provided to the Designating Party seven (7) days prior to the disclosure of the

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designated material.

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(b) Unless otherwise ordered by the Court or agreed to in writing by the Designating

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Party, a Party that seeks to disclose to an Expert (as defined in this Protective Order) any

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information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” pursuant to paragraph 7.3(c) first must make a written request to the Designating

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Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert,

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(2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3)

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attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)

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identifies each person or entity from whom the Expert has received compensation or funding for

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work in his or her areas of expertise or to whom the expert has provided professional services,

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including in connection with a litigation, at any time during the preceding five years, and (6)

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identifies (by name and number of the case, filing date, and location of court) any litigation in

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connection with which the Expert has offered expert testimony, including through a declaration,

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report, or testimony at a deposition or trial, during the preceding five (5) years. The notice must

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be provided to the Designating Party seven (7) days prior to the disclosure of the designated

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material.
(c) Unless otherwise ordered by the Court or agreed to in writing by the Designating

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Party, a Party that seeks to disclose “HIGHLY CONFIDENTIAL ATTORNEY – EYES ONLY”

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material to an officer or director of the Receiving Party first must make a written request to the

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Designating Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information that the Receiving Party seeks permission to disclose

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to the officer or director, (2) sets forth the full name of the officer or director and the city and state

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of his or her primary residence, (3) identifies the officer’s or director’s current employer(s) and

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any other boards upon which he or she sits, (4) identifies each person or entity from whom the

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officer or director has received compensation at any time during the preceding five years, and (5)

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the reason why such disclosure is reasonably necessary for the litigation. Further, counsel for the

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Receiving Party must provide confirmation that the officer or director has signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A) with agreement to limit the use of

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this information to discussion with their counsel and for no other purpose. The notice must be

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provided to the Designating Party seven (7) days prior to the disclosure of the designated

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material. Furthermore, the number of officers and directors of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation will not exceed three (3) individuals, and the

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information will not be disseminated or transmitted within the organization either directly or

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indirectly.

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(d) A Party that makes a request and provides the information specified in the

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preceding respective paragraphs may disclose the subject Protected Material to the identified

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officer or director, House Counsel, or Expert unless, within seven (7) days of delivering the

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request, the Party receives a written objection from the Designating Party. Any such objection

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must set forth in detail the grounds on which it is based.
(e) A Party that receives a timely written objection must meet and confer with the

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Designating Party (through direct voice to voice dialogue) to try to resolve the matter by

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agreement within seven (7) days of the written objection. If no agreement is reached, the Party

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seeking to make the disclosure to the officer or director, House Counsel, or the Expert may file a

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motion as provided in Civil L.R. 7 (and in compliance with Civil L.R. 79-5, if applicable) and in

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accordance with the Judge’s Standing Order, if applicable, seeking permission from the Court to

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do so. Any such motion must describe the circumstances with specificity, set forth in detail the

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reasons why the disclosure to officer or director, House Counsel, or the Expert is reasonably

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necessary, assess the risk of harm that the disclosure would entail, and suggest any additional

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means that could be used to reduce that risk. In addition, any such motion must be accompanied

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by a competent declaration describing the parties’ efforts to resolve the matter by agreement (i.e.,

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the extent and the content of the meet and confer discussions) and should set forth the reasons

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advanced by the Designating Party for its refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to an officer or director, House

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Counsel, or Expert shall bear the burden of proving that the risk of harm that the disclosure would

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entail (under the safeguards proposed) outweighs the Receiving Party’s need to disclose the

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Protected Material to its officer or director, House Counsel, or Expert.
Failure to object to access to an officer or director, House Counsel, or an Expert shall not

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preclude any party from later objecting to continued access by that officer or director, House

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Counsel, or Expert where facts suggest a basis for objecting could not have been discovered by

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the objecting party within the time for making timely objection. If a later objection is made, no

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further Protected Matter shall be disclosed to the officer or director, House Counsel, or Expert

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until the matter is resolved by the parties through the meet and confer process, by the Court, or

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the objecting Party withdraws its objection.

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that compels

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disclosure of any information or items designated in this action as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include a

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7

copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to issue in

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the other litigation that some or all of the material covered by the subpoena or order is subject to

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this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;

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and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a

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determination by the court from which the subpoena or order issued, unless the Party has obtained

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the Designating Party’s permission. The Designating Party shall bear the burden and expense of

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seeking protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action to disobey a

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lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party in

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this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with

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this litigation is protected by the remedies and relief provided by this Order. Nothing in these

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

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provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a

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3

Non-Party’s confidential information in its possession, and the Party is subject to an agreement

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that some

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6

or all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order

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8

in this litigation, the relevant discovery request(s), and a reasonably specific description of the

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information requested; and

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(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely

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seeks a protective order, the Receiving Party shall not produce any information in its possession

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or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

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burden and expense of seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made

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of all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

1

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

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communication or information covered by the attorney-client privilege or work product

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protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

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14
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MISCELLANEOUS
12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the court in the future.
12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence any of the material covered by

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this Protective Order.

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12.3

Privilege Logs. Counsel for a party may withhold documents from production as

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exempt from discovery because such documents are protected from disclosure under the attorney-

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client privilege or work product doctrine of Fed. R. Civ. P. 26(b), or any other applicable

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privilege or immunity. For documents so withheld, the party withholding the documents shall

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prepare a log consistent with Fed. R. Civ. P. 26(b)(5) identifying each document withheld, the

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protection claimed, and the basis for the protection, which shall be produced within fourteen (14)

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days of the date responses to Request for Production are required by Fed. R. Civ. P. 34. Counsel

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

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for either party need not list in any such log any privileged documents or communications

2

between their firm and their client created after the filing of this action.
12.4

3

Filing Protected Material. Without written permission from the Designating Party

4

or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material. A Party that seeks to file under seal any

6

Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

7

under seal pursuant to a court order authorizing the sealing of the specific Protected Material at

8

issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request

9

establishing that the Protected Material at issue is privileged, protectable as a trade secret, or

10

otherwise entitled to protection under the law. If a Receiving Party's request to file Protected

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Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then the

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Receiving Party may file the information in the public record pursuant to Civil Local Rule 79-5(e)

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unless otherwise instructed by the court.
12.5

14

This Protective Order shall be binding upon the parties and their attorneys,

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successors, executors, personal representatives, administrators, heirs, legal representatives,

16

assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or

17

organizations over which they have control.
12.6

18

The party or parties receiving Protected Material shall not under any circumstances

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sell, offer for sale, advertise, or publicize Protected Material or any information contained therein.

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13.

21

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each

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Receiving Party must return all Protected Material to the Producing Party or destroy such

23

material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

24

compilations, summaries, and any other format reproducing or capturing any of the Protected

25

Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

26

submit a written certification to the Producing Party (and, if not the same person or entity, to the

27

Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

1

the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has

2

not retained any copies, abstracts, compilations, summaries or any other format reproducing or

3

capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

4

retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

5

legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

6

product, and consultant and expert work product, even if such materials contain Protected

7

Material. Any such archival copies that contain or constitute Protected Material remain subject to

8

this Protective Order as set forth in Section 4 (DURATION).

9

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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///

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///

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///

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

Dated: December 19, 2017

DRINKER BIDDLE & REATH LLP

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2

By: /s/ Bonnie Barnett
BONNIE BARNETT
ADAM J. THURSTON
Attorneys for Defendant
VWR INTERNATIONAL, LLC

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4
5

Dated: December 19, 2017

ROPERS, MAJESKI, KOHN & BENTLEY

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By: /s/ Kathleen Strickland
KATHLEEN STRICKLAND
STEPHAN CHOO
Attorneys for Defendant
VWR INTERNATIONAL, LLC

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9
10
Dated: December 19, 2017

VERIS LAW GROUP PLLC

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12
By: /s/ Michelle Rosenthal
MICHELLE ROSENTHAL
GREGORY HIXSON
Attorneys for Defendant
UNIVAR USA INC.

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16

Dated: December 19, 2017

NIXON PEABODY LLP

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By: /s/ Jennifer Kuenster
JENNIFER KUENSTER
ANTHONY BARRON
Attorneys for Defendant
UNIVAR USA INC.

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

Dated: December 19, 2017
1

PILLSBURY WINTHROP SHAW PITTMAN
LLP

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3

By: /s/ Philip S. Warden
PHILIP S. WARDEN
VIJAY K. TOKE
Attorneys for Plaintiff
150 SPEAR STREET ASSOCIATES,
L.P.

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5
6
7
8

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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11

December 19, 2017
DATED: ________________________

_____________________________________
HONORABLE JON S. TIGAR
UNITED STATES DISTRICT JUDGE

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of _________________ [print or

4

type full address], declare under penalty of perjury that I have read in its entirety and understand

5

the Stipulated Protective Order that was issued by the United States District Court for the

6

Northern District of California on _____ in the case of 150 Spear Street Associates, L.P. v. VWR

7

International, LLC, et al, CASE NO. 3:17-cv-03246-JST. I agree to comply with and to be bound

8

by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure

9

to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly

10

promise that I will not disclose in any manner any information or item that is subject to this

11

Stipulated Protective Order to any person or entity except in strict compliance with the provisions

12

of this Order.

13

I further agree to submit to the jurisdiction of the United States District Court for the Northern

14

District of California for the purpose of enforcing the terms of this Stipulated Protective Order,

15

even if such enforcement proceedings occur after termination of this action.

16

I hereby appoint __________________________ [print or type full name] of

17

_______________________________________ [print or type full address and telephone

18

number] as my California agent for service of process in connection with this action or any

19

proceedings related to enforcement of this Stipulated Protective Order.

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21

Date: ______________________________________

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City and State where sworn and signed: _________________________________

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24

Printed name: _______________________________

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26

Signature: __________________________________

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER

1
2
3
4

ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3)
I, N. Kathleen Strickland, am the ECF user whose identification and password are being
used to file the foregoing Stipulated Protective Order. I hereby attest that the above-referenced
signatories to this Stipulated Protective Order have concurred in this filing.

5
6

Dated: December 19, 2017

By: /s/N. Kathleen Strickland
N. KATHLEEN STRICKLAND

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CASE NO.: 3:17-CV-03246-JST
STIPULATED PROTECTIVE ORDER