In re: IMPAX LABORATORIES INC. SECURITIES LITIGATION

Filing 212

STIPULATION AND ORDER Docket # 211 (rslc1, COURT STAFF) (Filed on 11/25/2008)

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BLANK ROME LLP MICHAEL JOSEPH (pro hac vice) JOSEPH O. CLICK (pro hac vice) HARDY VIEUX (pro hac vice) TIMOTHY P. HARRIS (pro hac vice) 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 Telephone: [phone] Facsimile: 202.572.5858 -andLOUIS H. KOZLOFF (pro hac vice) One Logan Square 130 North 18th Street Philadelphia, Pennsylvania 19103-6998 Telephone: [phone] Facsimile: 215.569.5555 BINGHAM MCCUTCHEN LLP DALE BARNES (SBN 99273) Three Embarcadero Center San Francisco, California 94111 Telephone: [phone] Facsimile: 415.393.2286 Counsel for Defendants Addit io nal Counsel on Signature Page UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA In re IMPAX LABORATORIES, INC. SECURITIES LITIGATION ) ) ) ) This Document Related to: ) ) ) ALL ACTIONS ) ) ) ) ) ) ) ) ) __________________________________________) Master File No. C-04-4802-JW CLASS ACTION STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIALITY OF DISCOVERY MATERIALS

STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIALITY OF DISCOVERY MATERIALS, CASE NO. C-04-4802-JW
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STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIALITY OF DISCOVERY MATERIALS INTRODUCTION This Stipulation and Protective Order Regarding Confidentiality of Discovery Materials ("tipulat ion and Order" is entered pursuant to Federal Rule of Civil Procedure 26(c) to facilitate S ) the production, inspection and copying of information during discovery by the parties to the abovecaptioned action, and as well as to protect information produced by others who are not parties to the action. Disclosure and discovery activity in this action are likely to involve production of

confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the court to file material under seal. 2. DEFINITIONS 2.1 Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and outside counsel (and their support staff). 2.2 Disclosure or Discovery Material: all items or information, regardless of the medium

or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter. 2
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2.3

" onfident ial" C Information or Items: information (regardless of how generated, stored

or maintained) or tangible things that qualify for protection under standards developed under Fed. R. Civ. P. 26(c). 2.4 " ighly Confidential ­ H Attorneys' Eyes Only" Information or Items: extremely

sensitive " onfidential Information or Items" C whose disclosure to another Party or non-party would create a substantial risk of serious injury that could not be avoided by less restrictive means. 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party. 2.6 in this action. 2.7 Designat ing Party: a Party or non-party that designates information or items that it Producing Party: a Party or non-party that produces Disclosure or Discovery Material

produces in disclosures or in responses to discovery as " onfident ial" " ighly Confidential ­ C or H Attorneys' Eyes Only." 2.8 Protected Material: any Disclosure or Discovery Material that is designated as

" onfident ial" as " ighly Confidential ­ C or H Attorneys' Eyes Only." 2.9 Outside Counsel: attorneys who are not employees of a Party but who are retained to

represent or advise a Party in this action. 2.10 2.11 support staffs). 2.12 Expert: a person with specialized knowledge or experience in a matter pertinent to the House Counsel: attorneys who are employees of a Party. Counsel (without qualifier): Outside Counsel and House Counsel (as well as their

litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action and who is not a past or a current employee of a Party or of a competitor of 3
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a Party'and who, at the time of retention, is not anticipated to become an employee of a Party or a s competitor of a Party' This definition includes a professional jury or trial consultant retained in s. connection with this litigation. 2.13 Professio nal Vendors: persons or entities that provide litigation support services (e.g.,

photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material. 4. DURATION Even after the termination of this 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. 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or

non-party that designates information or items for protection under this Order must take reasonable care to limit any such designation to specific material that qualifies under the appropriate standards. Given the complexity of this litigation and the potential that a party or non-party will be required to produce significant amounts of documents, in order to expedite production of those documents, the Parties may in good faith liberally designate material for protection. Nonetheless, a Designating Party should take care to designate for protection only those parts of material, documents, items, or oral or written communications that qualify ­ that other portions of the material, documents, so items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. 4
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Mass, indiscriminate, or routinized designations should be avoided. 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. Objections to designations solely on grounds that such designations do not comply with this section 5.1 shall be made in good faith and only if such designations are clearly unjustified and made for an improper purpose. If it comes to a Party'or a non-party'attention that information or items that it designated s s for protection do not qualify for protection at all, or do not qualify for the level of protection initially asserted, that Party or non-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, material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designat ion in conformity with this Order requires: (a) for information in documentary form (apart from transcripts of depositions or

other pretrial or trial proceedings), that the Producing Party affix the legend " ONFIDENTIAL" C or " IGHLY CONFIDENTIAL ­ H ATTORNEYS' EYES ONLY" the margin of each page that in contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must reasonably and clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted (either " ONFIDENTIAL" " IGHLY CONFIDENTIAL ­ C or H ATTORNEYS' EYES ONLY" 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 " IGHLY H 5
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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 (" ONFIDENTIAL" C or " IGHLY CONFIDENTIAL ­ H ATTORNEYS' EYES ONLY" in the margin of 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 reasonably and clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted (either " ONFIDENTIAL" " IGHLY CONFIDENTIAL ­ C or H ATTORNEYS' EYES ONLY" ). (b) for testimony given in deposition or in other pretrial or trial proceedings, that

the Party or non-party offering or sponsoring the testimony identify on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony, and further specify any portions of the testimony that qualify as " IGHLY CONFIDENTIAL ­ H ATTORNEYS' EYES ONLY." When it is impractical to identify separately each portion of testimony that is entitled to protection, and when it appears that substantial portions of the testimony may qualify for protection, the Party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before the deposition or proceeding is concluded) a right to have up to 20 days to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted (" ONFIDENTIAL" " IGHLY CONFIDENTIAL ­ C or H ATTORNEYS' EYES ONLY" Only ). those portions of the testimony that are appropriately designated for protection within the days shall be covered by the provisions of this Stipulated Protective Order. Transcript pages containing Protected Material must be separately bound by the court reporter, who must affix to the top of each such page the legend " ONFIDENTIAL" " IGHLY CONFIDENTIAL ­ C or H ATTORNEYS' EYES ONLY," instructed by the Party or non-party offering or sponsoring the witness or presenting the as testimony. 6
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(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 " ONFIDENTIAL" C or " IGHLY CONFIDENTIAL ­ H ATTORNEYS' EYES ONLY."If only portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall reasonably identify the protected portions, specifying whether they qualify as " onfident ial" as " ighly Confidential C or H ­ Attorneys' Eyes Only." (d) any document which contains " onfident ial" " ighly Confidential ­ C or H

Attorneys' Eyes Only" information that is filed with the Court pursuant to permission properly obtained under Civil Local Rule 79-5, shall be placed in a sealed envelope, which shall be marked with the caption of this action, the title of the document to be filed, and a legend substantially similar to the following: *DOCUMENT SUBMITTED UNDER SEAL* CONFIDENTIAL ­ Subject to Protective Order This envelope is sealed pursuant to an Order of the Court, contains Confidential information and is not to be opened or the contents revealed, except by the Order of the Court or agreement by the parties. No documents containing " onfidential" " ighly Confidential ­ C or H Attorneys' Eyes Only" information shall be filed on the Court'Electronic Case Filing System without the prior written s consent of the Producing Party. 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

designate qualified information or items as " onfident ial" " ighly Confidential ­ C or H Attorneys' Eyes Only" does not, standing alone, waive the Designating Party'right to secure protection under s this Order for such material. If material is appropriately designated as " onfident ial" " ighly C or H Confidential ­ Attorneys' Eyes Only" after the material was initially produced, the Receiving Party,

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on timely notification of the designation, 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. If any party objects to a designation of information as

" onfident ial" " ighly Confidential ­ C or H Attorneys' Eyes Only," party shall so state the the objection on the record at a deposition in which such designation was made or by giving written notice to the Producing Party identifying the information to which the objection is directed. The parties shall meet and confer in good faith to attempt to resolve all objections by agreement. If any objections cannot be resolved by agreement within ten (10) business days from when they are first made, the party objecting to the designation may file a motion with the court no later than ten (10) business day from the expiration of such earlier ten-day period challenging the designation. The proponent of the " onfident ial" " ighly Confidential ­ C or H Attorneys' Eyes Only" designation shall bear the burden of persuasion that there is good cause for the information to have such protection. Disputed information shall remain " onfident ial" " ighly Confidential ­ C or H Attorneys' Eyes Only" information under the terms of this Stipulation and Order until the Court rules on such motion or the Producing Party withdraws such designation in writing. 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating Party' s

confidentiality designation, including any challenge to the scope of the designations under section 5.1 hereto, must do so in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel for the Designating Party. 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 pursuant to section 6.1 hereto only if it has engaged in this meet and confer process first. 8
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6.3

Judicial Intervention. A Party that elects to challenge a confidentiality designation

after considering the justification offered by the Designating Party may file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the movant has complied with the meet and confer requirements imposed in the preceding sections 6.1 and 6.2 and that sets forth with specificity the justification for the confidentiality designation that was given by the Designating Party in the meet and confer dialogue. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Until the court rules on the challenge, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party'designation. s 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 case only for prosecuting, defending, or attempting to settle this litigation. 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 11, below (FINAL DISPOSITION). 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 " ONFIDENTIAL" C Information or Items. 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'Outside Counsel of record in this action, including all s

emplo yees of said Counsel;

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(b)

the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the " greement to Be Bound by Protective Order" A (Exhibit A); (c) Experts of the Receiving Party to whom disclosure is reasonably necessary for

this litigation and who have signed the " greement to Be Bound by Protective Order" A (Exhibit A); (d) (e) the Court and its personnel; court reporters, their staffs, and Professional Vendors to whom disclosure is

reasonably necessary for this litigation; (f) during their depositions, witnesses in the action to whom disclosure is

reasonably necessary and who have signed the " greement to Be Bound by Protective Order" A (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. (g) the author of the document or the original source of the information.

Disclosure of " IGHLY CONFIDENTIAL ­ H ATTORNEYS' EYES ONLY"

Informat ion or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated " IGHLY H CONFIDENTIAL ­ ATTORNEYS' EYES ONLY" only to: (a) the Receiving Party'Outside Counsel of record in this action, including all s

employees of said Counsel to whom it is reasonably necessary to disclose the information for this litigation; (b) Experts of the Receiving Party to whom disclosure is reasonably necessary for

this litigation and who have signed the " greement to Be Bound by Protective Order" A (Exhibit A); (c) (d) the Court and its personnel; court reporters, their staffs, and Professional Vendors to whom disclosure is

reasonably necessary for this litigation; and 10
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(e)

the author of the document or the original source of the information.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Receiving Party is served with a subpoena or an order issued in other litigation that

would compel disclosure of any information or items designated in this action as " ONFIDENTIAL" " IGHLY CONFIDENTIAL ­ C or H ATTORNEYS' EYES ONLY," the Receiving Party must so notify the Designating Party, in writing (by fax or electronic mail, if possible) immediately and in no event more than three business days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order. The Receiving Party also must immediately inform in writing the Party who caused the subpoena or order to issue in the other litigation that some or all the material covered by the subpoena or order is the subject of this Protective Order and deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that caused the subpoena or order to issue. The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to protect its confidentiality interests in the court from which the subpoena or order issued. The Designating Party shall bear the burdens and the expenses 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 this action to disobey a lawful directive from another court. 9. 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 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 " cknowledgment and Agreement to Be Bound" A 11
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that is attached hereto as Exhibit A, and (e) request that such person or persons return all copies of the Protected Material. 10. FILING PROTECTED MATERIAL Wit hout written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party other than the Designating Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. 11. FINAL DISPOSITION Unless otherwise ordered or agreed in writing by the Producing Party, within 120 days after the final termination of this action, each Receiving Party must return all Protected Material to the Producing Party. As used in this subdivision, "ll Protected Material" a includes all copies, abstracts, compilations, summaries or any other form of reproducing or capturing any of the Protected Material. With permission in writing from the Designating Party, the Receiving Party may destroy some or all of the Protected Material instead of returning it. 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 120 day deadline that identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney 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 (DURATION), above.

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12.

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 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, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. The parties to the above-captioned matter, through their respective counsel, expressly agree to the terms of this Stipulation and Order and consent to its form and entry.

Dated: November ___, 2008 IT IS SO STIPULATED THROUGH COUNSEL OF RECORD:

[SIGNATURE PAGE TO FOLLOW]

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COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP /s/ AZRA MEHDI Azra Mehdi Daniel J. Pfefferbaum Suzanne Kaplan 100 Pine Street, Suite 2600 San Francisco, California 94111 -andLaurie L. Largent 655 West Broadway, Suite 1900 San Diego, California 92101 VANOVERBEKE MICHAUD & TIMMONY, P.C. Michael Vanoverbeke Thomas C. Michaud 79 Alfred Street Detroit, Michigan 48201 Counsel for Plaintiffs

BLANK ROME LLP /s/ MICHAEL JOSEPH Michael Joseph Joseph O. Click Hardy Vieux Timothy P. Harris 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 Telephone: [phone] Facsimile: 202.572.5858 -andLouis H. Kozloff One Logan Square 130 North 18th Street Philadelphia, Pennsylvania 19103-6998 Telephone: [phone] Facsimile: 215.569.5555 BINGHAM MCCUTCHEN LLP Dale Barnes John Pernick Three Embarcadero Center San Francisco, California 94111 Telephone: [phone] Facsimile: 415.393.2286 Counsel for Defendants

PURSUANT TO STIPULATION, IT IS SO ORDERED in accordance with the foregoing stipulation. _11/24/__________________ _____ 08 Date __________________________________________ James Ware United States District Judge Richard Seeborg United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I _____________________________________ of ___________________________, 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 In re Impax Laboratories, Inc. Securities Litigation, Master File No. C-04-4802-JW. 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 this action. 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 this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: _____________________ Cit y and State where sworn and signed: ) Printed name: ) [printed name] ) Signature: By: ______________________________

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