Former Shareholders of CardioSpectra, Inc. v. Volcano Corporation and Does 1-10
Filing
46
STIPULATED PROTECTIVE ORDER filed by Former Shareholders of CardioSpectra, Inc., Volcano Corporation,. Signed by Judge GONZALEZ ROGERS on 1/3/13. (lrc, COURT STAFF) (Filed on 1/3/2013)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
OAKLAND DIVISION
11
12
FORMER SHAREHOLDERS OF
CARDIOSPECTRA, INC.,
13
STIPULATED MODIFIED PROTECTIVE
ORDER
Plaintiffs,
14
15
Case No. CV12-01535 (YGR)
v.
VOLCANO CORPORATION, a Delaware
corporation; and DOES 1-10,
16
Defendants.
DEMAND FOR JURY TRIAL
17
18
1.
PURPOSE AND LIMITATIONS
19
This Stipulated Protective Order is entered into by Plaintiffs Christopher E. Banas and
20
Paul Castella in their respective capacities as Shareholder Representatives for the Former
21
Shareholders of CardioSpectra, Inc. (“Plaintiffs”), and Defendant Volcano Corporation
22
(“Volcano”) in connection with disclosure and discovery activity in the above-captioned case.
23
Disclosure and discovery activity in this action is likely to involve production of confidential,
24
proprietary, or private information, thereby warranting special protection from public disclosure
25
and from use for any purpose other than prosecuting and defending this litigation. Accordingly,
26
the Parties hereby stipulate to and petition the Court to enter the following Stipulated Protective
27
Order. The Parties acknowledge that this Order does not confer blanket protections on all
28
disclosures or responses to discovery and that the protection it affords from public disclosure and
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
1.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
use extends only to the limited Disclosure or Discovery Material (defined below) that is entitled
to confidential treatment under the applicable legal principles. The Parties further acknowledge,
as set forth in Section 13.3 below, that this Stipulated Protective Order does not entitle them to
file confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the
procedures that must be followed and the standards that will be applied when a Party seeks
permission from the Court to file material under seal.
2.
8
9
2.1
12
2.2
15
16
17
18
19
20
21
22
23
24
25
26
a Party or Non-Party that challenges the designation of
“CONFIDENTIAL” Disclosure or Discovery Material: Disclosure or Discovery
Material (defined below), regardless of how it is generated, stored or maintained, or tangible
things that qualify for protection under Federal Rule of Civil Procedure 26(c).
13
14
Challenging Party:
Disclosure or Discovery Material (defined below) under this Order.
10
11
DEFINITIONS
2.3
Counsel: Outside Counsel of Record and House Counsel (as well as their support
2.4
Designated House Counsel:
staff).
House Counsel who seek access to “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
2.5
Designating Party:
a Party or Non-Party that may designate Disclosure or
Discovery Material (defined below) that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
2.6
Disclosure or Discovery Material: all items or information, regardless of the
medium or manner in which it is generated, stored, or maintained (including, among other things,
testimony, transcripts, and tangible things) that are produced or generated in disclosures or
responses to discovery in this matter.
2.7
Expert: a person with specialized knowledge or experience in a matter pertinent to
the Litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
consultant in the Litigation.
27
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
2.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2.8
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (and “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY B/C”) Disclosure or Discovery Material:
extremely sensitive Disclosure or Discovery Material, disclosure of which to another Party or
Non-Party would create a substantial risk of serious harm that could not be avoided by less
restrictive means.
2.9
House Counsel: attorneys who are employees of a Party to the Litigation. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
2.10
Litigation: that certain litigation pending in the United States District Court in the
Northern District of California, identified as Civil Action No. CV12-01535 (YGR) and entitled
Former Shareholders of CardioSpectra, Inc. v. Volcano Corporation, a Delaware corporation; and
DOES 1-10.
2.11
Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to the Litigation.
2.12
Outside Counsel of Record: attorneys who are not employees of a Party to the
Litigation but are retained to represent or advise a Party to the Litigation and have appeared in the
Litigation on behalf of that Party or are affiliated with a law firm which has appeared on behalf of
that Party.
2.13
Party: (1) Plaintiffs Christopher E. Banas and Paul Castella in their respective
capacities as Shareholder Representatives for the Former Shareholders of CardioSpectra, Inc.,
including consultants, retained experts, and Outside Counsel of Record (and their support staffs),
and (2) Volcano Corporation, including all of its officers, directors, employees, consultants,
retained experts, and Outside Counsel of Record (and their support staffs).
2.14
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in the Litigation.
2.15
Professional Vendors: persons or entities that provide litigation support services
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
27
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
3.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
3
4
5
2.16
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY B/C,” or as
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
6
7
8
2.17
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
3.
9
10
Protected Material: any Disclosure or Discovery Material that is designated as
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material
(as defined above), but also (1) any information copied or extracted from Protected Material;
(2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a
Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
a result of publication not involving a violation of this Order, including becoming part of the
public record through trial or otherwise; and (b) any information known to the Receiving Party
prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
obtained the information lawfully and under no obligation of confidentiality to the Designating
Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
4.
DURATION
Even after final disposition of the Litigation, the confidentiality obligations imposed by
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
claims and defenses in the Litigation, with or without prejudice; and (2) final judgment herein
after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of the
27
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
4.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Litigation, including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.
5.
DESIGNATION OF PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party
or Non-Party that designates Disclosure or Discovery Material for protection under this Order
must take care to limit any such designation to specific material that qualifies under the
appropriate standards. The Designating Party must designate for protection only those parts of
material, documents, items, or oral or written communications that qualify – so that other portions
of the material, documents, items, or communications for which protection is not warranted are
not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
unnecessarily encumber or retard the case development process or to impose unnecessary
expenses and burdens on other Parties) expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that Disclosure or Discovery Material that it
designated for protection do not qualify for protection at all or do not qualify for the level of
protection initially asserted, that Designating Party must promptly notify all other Parties that it is
withdrawing the mistaken designation.
5.2
Manner and Timing of Designations. Except as otherwise provided in this Order
(see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a)
for information in documentary form (e.g., paper or electronic documents,
but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
Party affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY B/C,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
5.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
page that contains protected material. If only a portion or portions of the material on a page
qualifies for protection, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which
material it would like copied and produced. During the inspection and before the designation, all
of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
copied and produced, the Producing Party must determine which documents, or portions thereof,
qualify for protection under this Order. Then, before producing the specified documents, the
Producing Party must affix the appropriate legend (“CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY B/C,” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a portion
or portions of the material on a page qualifies for protection, the Producing Party also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).
(b)
for testimony given in deposition or in other pretrial or trial proceedings,
that the Designating Party identify on the record, before the close of the deposition, hearing, or
other proceeding, all protected testimony and specify the level of protection being asserted.
When it is impractical to identify separately each portion of testimony that is entitled to protection
and it appears that substantial portions of the testimony may qualify for protection, the
Designating Party may invoke on the record (before the deposition, hearing, or other proceeding
is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to
which protection is sought and to specify the level of protection being asserted. Only those
portions of the testimony that are appropriately designated for protection within the 21 days shall
be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating
Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked,
that the entire transcript shall be treated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
6.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
ATTORNEYS’ EYES ONLY B/C,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.”
Parties shall give the other Parties notice if they reasonably expect a deposition, hearing or
other proceeding to include Protected Material so that the other Parties can ensure that only
authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
shall not in any way affect its designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY B/C,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.”
Transcripts containing Protected Material shall have an obvious legend on the title page
that the transcript contains Protected Material, and the title page shall be followed by a list of all
pages (including line numbers as appropriate) that have been designated as Protected Material and
the level of protection being asserted by the Designating Party. The Designating Party shall
inform the court reporter of these requirements. Any transcript that is prepared before the
expiration of a 21-day period for designation shall be treated during that period as if it had been
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
otherwise agreed. After the expiration of that period, the transcript shall be treated only as
actually designated.
19
20
21
22
23
24
25
26
27
(c)
for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend “CONFIDENTIAL,”
“HIGHLY
CONFIDENTIAL
–
ATTORNEYS’
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
EYES
ONLY
B/C”
or
“HIGHLY
If only a portion or portions of the
information or item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s).
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified Disclosure or Discovery Material does not, standing alone, waive the
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
7.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Designating Party’s right to secure protection under this Order for such material. Upon timely
correction of a designation, the Receiving Party must make reasonable efforts to assure that the
material is treated in accordance with the provisions of this Order.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the Litigation, a Party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution
process by providing written notice of each designation it is challenging and describing the basis
for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
notice must recite that the challenge to confidentiality is being made in accordance with this
specific paragraph of the Protective Order. The Parties shall attempt to resolve each challenge in
good faith and must begin the process by conferring directly (in voice to voice dialogue; other
forms of communication are not sufficient) within 14 days of the date of service of notice. In
conferring, the Challenging Party must explain the basis for its belief that the confidentiality
designation was not proper and must give the Designating Party an opportunity to review the
designated material, to reconsider the circumstances, and, if no change in designation is offered,
to explain the basis for the chosen designation. A Challenging Party may proceed to the next
stage of the challenge process only if it has engaged in this meet and confer process first or
establishes that the Designating Party is unwilling to participate in the meet and confer process in
a timely manner.
6.3
Judicial Intervention. If the Parties cannot resolve a challenge without court
intervention, the parties shall follow the Court’s Standing Order in Civil Cases regarding
Discovery and Discovery Motions. The parties may file a joint letter brief regarding retaining
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
8.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
8
9
confidentiality within 21 days of the initial notice of challenge or within 14 days of the parties
agreeing that the meet and confer process will not resolve their dispute, whichever is earlier.
Failure by a Designating Party to file such discovery dispute letter within the applicable 21 or 14
day period (set forth above) with the Court shall automatically waive the confidentiality
designation for each challenged designation. If, after submitting a joint letter brief, the Court
allows that a motion may be filed, any such motion must be accompanied by a competent
declaration affirming that the movant has complied with the meet and confer requirements
imposed in the preceding paragraph. The Court, in its discretion, may elect to transfer the
discovery matter to a Magistrate Judge.
10
11
12
13
14
15
16
In addition, the parties may file a joint letter brief regarding a challenge to a
confidentiality designation at any time if there is good cause for doing so, including a challenge to
the designation of a deposition transcript or any portions thereof. If, after submitting a joint letter
brief, the Court allows that a motion may be filed, any motion brought pursuant to this provision
must be accompanied by a competent declaration affirming that the movant has complied with the
meet and confer requirements imposed by the preceding paragraph. The Court, in its discretion,
may elect to transfer the discovery matter to a Magistrate Judge.
17
18
19
20
21
22
23
24
25
26
27
The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
unnecessary expenses and burdens on other parties) may expose the Challenging Party to
sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
file letter brief to retain confidentiality as described above, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the Producing Party’s
designation until the court rules on the challenge.
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is disclosed
or produced by another Party or by a Non-Party in connection with this Litigation only for
prosecuting, defending, or attempting to settle the claims, counterclaims, and or defenses asserted
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
9.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
by, among, between, or against Plaintiffs on the one hand, and Defendant on the other hand.
Such Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the litigation has been terminated, a Receiving Party
must comply with the provisions of Section 14 below.
Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2
Disclosure of “CONFIDENTIAL” Disclosure or Discovery Material.
Unless
otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving
Party may disclose any information or item designated “CONFIDENTIAL” only to:
(a)
the Receiving Party’s Outside Counsel of Record in the Litigation, as well
as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
the information for this Litigation;
(b)
the Receiving Parties and, if applicable, the officers, directors, and
employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably
necessary for this Litigation;
(c)
Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A);
(d)
this Court, or the United States District Court for the Northern District of
California and the personnel of such courts;
(e)
court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for this Litigation
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f)
during their depositions, witnesses in the Litigation to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the Court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
10.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order;
3
4
(g)
custodian or other person who otherwise possessed or knew the information and
5
6
7
8
9
10
(h)
13
7.3
by the Designating Party, a Receiving Party may disclose any information or item designated
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a)
18
19
20
21
22
23
24
25
26
the Receiving Party’s Outside Counsel of Record in this Litigation, as well
as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
the information for this litigation;
(b)
House Counsel of the Receiving Party to whom disclosure is reasonably
necessary for this litigation;
16
17
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
Disclosure or Discovery Material. Unless otherwise ordered by the Court or permitted in writing
14
15
a mediator retained by the Parties, or appointed by the Court, to assist
resolving the dispute, who has signed the Undertaking attached as Exhibit A.
11
12
the author or recipient of a document containing the information or a
(c)
Experts of the Receiving Party (1) to whom disclosure is reasonably
necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A), and (3) as to whom the procedures set forth in Section 7.4(b) below have
been followed;
(d)
this Court, or the United States District Court for the Northern District of
California and the personnel of such courts;
(e)
court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f)
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information; and
27
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
11.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
(g)
resolving the dispute, who has signed the Undertaking attached as Exhibit A.
3
4
5
6
7
8
9
10
11
12
Unless otherwise ordered by the Court or permitted in writing by the Designating Party,
Disclosure Information and Discovery Material designated “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY B/C”
15
16
17
18
19
20
21
22
23
24
25
26
27
shall be limited to such persons that qualify under
Section 7.3 (a)- (g) above and Plaintiffs Christopher E. Banas and Paul Castella only. Disclosure
Information or Discovery Material that may be required by law to be disclosed or produced in this
Litigation by any Disclosing Party that may contain information alleged to be confidential by
LightLab Imaging, Inc. or its parent(s), successor(s), or affiliate(s) (including without limitation
St. Jude Medical, Inc.) shall not be disclosed to any employee, officer, or director of Volcano,
notwithstanding any designation that may be placed upon it by the Producing Party pursuant to
this Order.
13
14
a mediator retained by the Parties, or appointed by the Court, to assist
7.4
–
Requirements for Disclosure of “CONFIDENTIAL” “HIGHLY CONFIDENTIAL
ATTORNEYS’
EYES
ONLY”
Disclosure
or
Discovery
Material
to
Experts.
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY B/C,” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information or items may be
disclosed to an Expert without disclosure of the identity of the Expert as long as the Expert is not
a current officer, director, or employee of a competitor of a Party or anticipated to become one.
All Experts who are to receive “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY B/C,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” information or items must comply with Sections 7.2 (c) and 7.3 (c).
8.
PROSECUTION BAR
Absent written consent from the Producing Party, any individual who receives access to
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY B/C” information shall not be involved in the prosecution of
patents or patent applications pertaining to Optical Coherence Tomography or any products,
components, processes and technologies relating to Optical Coherence Tomography, including
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
12.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
6
7
8
9
10
without limitation any patents pertinent to this Litigation and any patent or application claiming
priority to or otherwise related to any patents pertinent to this Litigation, before any foreign or
domestic agency, including the United States Patent and Trademark Office (the “Patent Office”).
For purposes of this paragraph, “prosecution” includes directly or indirectly drafting, amending,
advising, or otherwise affecting the scope or maintenance of patent claims. To avoid any doubt,
“prosecution” as used in this paragraph does not include representing a party challenging a patent
before a domestic or foreign agency (including, but not limited to, a reissue protest, ex parte
reexamination, or inter partes reexamination). This Prosecution Bar shall begin when access to
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information is first received by
the affected individual and shall end two (2) years after final termination of this Litigation.
11
9.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any Disclosure or Discovery Material designated in the Litigation as
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY B/C,” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
(a)
promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b)
promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena or order is
subject to this Protective Order.
Such notification shall include a copy of this Stipulated
Protective Order; and
(c)
cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in the Litigation as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
13.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
determination by the court from which the subpoena or order issued, unless the Party has obtained
the Designating Party’s permission. The Designating Party shall bear the burden and expense of
seeking protection in that court of its confidential material and nothing in these provisions should
be construed as authorizing or encouraging a Receiving Party in the Litigation to disobey a lawful
directive from another court.
6
10.
7
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THE
LITIGATION
8
9
10
11
12
(a)
Party in the Litigation and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with
the Litigation is protected by the remedies and relief provided by this Order. Nothing in these
provisions should be construed as prohibiting a Non-Party from seeking additional protections.
13
14
15
16
(b)
19
agreement with the Non-Party not to produce the Non-Party’s confidential information, then the
Party shall:
(1)
22
Party;
(2)
25
26
27
promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this Litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
23
24
promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality agreement with a Non-
20
21
In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is subject to an
17
18
The terms of this Order are applicable to information produced by a Non-
(3)
make the information requested available for inspection by the
Non-Party.
(c)
If the Non-Party fails to object or seek a protective order from this Court
within 14 days of receiving the notice and accompanying information, the Receiving Party may
produce the Non-Party’s confidential information responsive to the discovery request. If the
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
14.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
5
Non-Party timely seeks a protective order, the Receiving Party shall not produce any information
in its possession or control that is subject to the confidentiality agreement with the Non-Party
before a determination by the Court. Absent a court order to the contrary, the Non-Party shall
bear the burden and expense of seeking protection in this Court of its Protected Material.
11.
6
7
8
9
10
11
12
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
13
12.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). Pursuant to
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of
disclosure of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated protective order
submitted to the court.
13.
MISCELLANOUS
13.1
Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by the Court in the future.
13.2
Right to Assert Other Objections. By stipulating to the entry of this Protective
Order no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly,
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
15.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
no Party waives any right to object on any ground to use in evidence of any of the material
covered by this Protective Order.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
13.3
Filing Protected Material. Without written permission from the Designating Party
or a court order secured after appropriate notice to all interested persons, a Party may not file in
the public record in the Litigation any Protected Material. A Party that seeks to file under seal
any Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected
Material may only be filed under seal pursuant to a court order authorizing the sealing of the
specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a
sealing order will issue only upon a request establishing that the Protected Material at issue is
privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a
Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 795(d) and General Order 62 is denied by the Court, then the Receiving Party may file the
information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed
by the Court.
14.
FINAL DISPOSITION
Within 60 days after the final disposition of the Litigation, as defined in Section 4, each
Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or entity, to the
Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries, or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
16.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
product, and consultant and expert work product, even if such materials contain Protected
Material. Any such archival copies that contain or constitute Protected Material remain subject to
this Protective Order as set forth in Section 4.
4
5
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6
7
Dated: December 4, 2012
COOLEY LLP
8
9
/s/ Mark F. Lambert
MARK F. LAMBERT (197410)
10
Attorneys for Defendant Volcano Corporation
11
12
Dated: December 4, 2012
STANLEY • IOLA, LLP
13
14
15
/s/ Matthew J. Zevin
MATTHEW J. ZEVIN
16
Attorneys for Plaintiffs Former Shareholders of
CardioSpectra, Inc.
17
18
19
20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
17.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
SUBMITTED BY:
2
Dated: December 4, 2012
COOLEY LLP
3
4
5
/s/ Mark F. Lambert
MARK F. LAMBERT (197410)
6
Attorneys for Defendant Volcano Corporation
7
8
9
PURSUANT TO STIPULATION, IT IS SO ORDERED.
10
11
12
DATED: January 3, 2013
Yvonne Gonzalez Rogers
United States District Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
18.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
2
3
4
FILER’S ATTESTATION PURSUANT TO L.R. 5-1(i)(3)
I, Mark F. Lambert, attest that concurrence in the filing of this Stipulated [Proposed]
Protective Order has been obtained from Matthew Zevin, the signatory hereto on behalf of
Plaintiffs.
5
COOLEY LLP
Dated: December 4, 2012
6
7
/s/ Mark F. Lambert
MARK F. LAMBERT (197410)
8
Attorneys for Defendant Volcano Corporation
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
19.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
1
EXHIBIT A
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________ [print or
type full address], declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for the Northern District of
California on _______________________ [date] in the case of Former Shareholders of CardioSpectra,
Inc. v. Volcano Corporation, a Delaware corporation; and DOES 1-10, No. 12-cv-01535 (YGR).
I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the
nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that
is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the
provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the Northern
District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if
such enforcement proceedings occur after termination of the Litigation.
I
hereby
appoint
__________________________
[print
or
type
full
name]
of
_______________________________________ [print or type full address and telephone number] as my
California agent for service of process in connection with the Litigation or any proceedings related to
enforcement of this Stipulated Protective Order.
20
21
22
Date: _________________________________
City and State where sworn and signed: _________________________________
23
Printed name: ______________________________
24
25
Signature: __________________________________
26
27
28
COOLEY LLP
ATTO RNEY S AT LAW
PALO AL TO
20.
STIPULATED PROTECTIVE ORDER
(CASE NO.: CV12-01535 YGR)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?