Bueno et al v. Merck & Co., Inc. et al

Filing 32

ORDER granting 31 Joint Motion for Protective Order. Signed by Magistrate Judge Barbara Lynn Major on 1/17/2023. (jms)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.640 Page 1 of 25

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ORDER GRANTING JOINT MOTION
FOR PROTECTIVE ORDER

Plaintiffs,

12
13

v.

14

MERCK & CO, INC.; MERCK SHARP &
DOHME CORP.; ORGANON & CO.;
ORAGNON LLC; and DOES 1-10, inclusive,

15

Case No.: 22cv522-H(BLM)

SPENCER BUENO; and RICHARD PARKER,

16

[ECF No. 31]

Defendants.

17
18

On January 6, 2023, the parties filed a Joint Motion for Determination of Dispute

19

Regarding Proposed Stipulated Protective Order (“Motion”). ECF No. 31. The parties agree on

20

all the terms of the Protective Order with the exception of the underlined language below:

21
22
23
24
25
26
27
28

7.1 Basic Principles. Received Party may use Protected Material that is disclosed
or produced by another Party or by a Non-Party in connection with this Action only
for prosecuting, defending, or attempting to settle the Action or another action
involving substantially similar claims, against the same defendants (or some of the
same defendants), on behalf of a plaintiff (or plaintiffs) represented by one or
more of the same attorneys who represent any plaintiff in the Action. Such
Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of Section 16 below.
Motion at 2.
Plaintiffs seek entry of the Protective Order with the disputed language, which they refer
1

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.641 Page 2 of 25

1

to as a “cross-use provision.” Id. at 3. Plaintiffs argue that the language should be included in

2

the protective order because it “furthers the interests of efficiency and judicial economy and

3

reduces cost.” Id. at 4. Plaintiffs state that without such language there would be repeated

4

requests for the same documents, different judges ruling on the same discovery dispute, 1 and

5

a need to seek multiple amendments to the Protective Order. Id. at 4-6. Plaintiffs further

6

indicate that their requested provision is not an effort to circumvent the Ninth Circuit’s holding

7

in Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003); instead, Plaintiffs argue

8

that Foltz does not apply. Motion at 6. To support their position, Plaintiffs point to factual

9

differences between the above-titled case and Foltz, and they claim courts across the country

10

favor cross-use provisions in complex litigation. Id. at 6-8.

11

Defendants argue that Foltz is applicable here and Plaintiffs’ requested language

12

“impermissibly contravenes settled California procedure concerning disclosure of confidential

13

material in a ‘collateral matter.’” Motion at 9. Defendants further indicate that many of the cases

14

that Plaintiffs rely on pre-date Foltz or follow California procedure, which is inapplicable here.

15

Motion at 13-15. Defendants also argue that following Foltz’s principles is especially appropriate

16

here where there are “material differences seen throughout the Singulair cases[,]” as the various

17

Plaintiffs “arrived at the medicine with their own unique medical history; was prescribed the

18

medicine based on their own preexisting conditions . . . ; and allegedly experienced diverse

19

effect and varied injuries at different periods during their course of usage.”

20

Defendants indicate that despite calling it a “cross-use provision,” Plaintiffs seek to share

21

information with collateral litigants, making Foltz further applicable. Id. at 9. Defendants

22

represent that a protective order without Plaintiffs’ requested language will not prevent the

23

sharing of discovery. Id. at 17.

Id. at 15.

24
25
26
27
28

There are currently 357 cases, involving 363 plaintiffs, that “involve[] claims that branded or
generic Singulair caused neuropsychiatric injuries in plaintiffs.” Motion at 4. These pending
cases are being overseen by thirteen different judges and involve the same defendants. Id. Of
the 357 cases, 356 “are led by the same attorneys representing Plaintiffs here, Kimberly Beck
and Lynne Kizis.” Id.
1

2

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.642 Page 3 of 25

1

While the Ninth Circuit “strongly favors access to discovery materials to meet the needs

2

of parties engaged in collateral litigation[,]” courts should not automatically approve a request

3

to share discovery. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th Cir. 2003)

4

(citing Beckman Indus. Inc. v. Int’l Ins. Co., 966 F.2d 470, 475 (9th Cir. 1992)). Instead, under

5

Foltz, the Ninth Circuit requires that a collateral litigant “demonstrate the relevance of the

6

protected discovery materials to the collateral proceedings and its general discoverability

7

therein.” Id. This requirement aims to “prevent[] collateral litigants from gaining access to

8

discovery materials merely to subvert limitations on discovery in another proceeding.” Id. The

9

Ninth Circuit explains:

10

Allowing the parties to the collateral litigation to raise specific relevance and
privilege objections to the production of any otherwise properly protected
materials in the collateral courts further serves to prevent the subversion of
limitations on discovery in the collateral proceedings. These procedures also
preserve the proper role for each of the courts involved: the court responsible for
the original protective order decides whether modifying the order will eliminate the
potential for duplicative discovery. If the protective order is modified, the collateral
courts may freely control the discovery processes in the controversies before them
without running up against the protective order of another court.

11
12
13
14
15
16
17

Id.

18

The Court finds that Foltz governs here. Despite Plaintiffs referring to the disputed

19

language as a “cross-use provision,” the results remain the same—sharing information with

20

collateral litigants in collateral matters. Accordingly, the reasoning and holding in Foltz dictate

21

the exclusion of Plaintiffs’ language. The Court agrees with Defendants and finds that Plaintiffs

22

have failed to establish a legal or factual basis to permit the requested cross-use provision in

23

the Protective Order. First, most of the cases Plaintiffs rely on to support their argument that

24

cross-use provisions are favored across the country pre-date Foltz. 2

Second, as noted by

25
26
27
28

The exceptions are Twilio, Inc. v. Telesign Corp., 2017 U.S. Dist. LEXIS 52532 (N.D. Cal. Apr.
5, 2017) and Apple, Inc. v. Samsungs Elecs. Co., Ltd, 2012 U.S. Dist. LEXIS 51884 (N.D. Cal.
Apr. 12, 2012). Twilio and Apple are distinguishable here because in both cases the parties
had agreed that “cross-use” language should be incorporated in the protective orders. Twilio,
Inc., 2017 U.S. Dist. LEXIS 52532, at *2; Apple, Inc., 2012 U.S. Dist. LEXIS 51884, at *27.
2

3

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.643 Page 4 of 25

1

Defendants, courts in the Ninth Circuit repeatedly have applied Foltz in similar situations, and

2

have determined that a cross-use, or sharing, provision violates Foltz because it allows collateral

3

litigants to circumvent Foltz’s relevancy principles and procedures. See Motion at 12-13; see

4

also Kelly v. Provident Life & Accident Ins., Co., 2008 WL 5132851, at *3 (S.D. Cal. Dec 5, 2008)

5

(determining such language “interferences with the requirement in Foltz that the collateral

6

litigant demonstrate to the Court the relevance of the protected discovery to the collateral

7

proceedings.”) (citation omitted); see also Nuvasive, Inc. v. Alphatec Holdings, Inc., 2019 WL

8

201440, at *2 (S.D. Cal. Jan. 15, 2019) (“The Court will not permit collateral litigants to gain

9

automatic access to Defendants’ confidential materials without providing some procedural

10

safeguards regarding the dissemination of those materials, and without following proper

11

procedure[,]” as outlined in Foltz).

12

Plaintiffs make efforts to distinguish Foltz from the facts here 3, but the Court is

13

unpersuaded. In Siefe v. Unum Group, 2018 WL 6340751 (C.D. Cal. June 11, 2008), plaintiff

14

sought the entry of similar “cross-use” language: “[P]laintiff requests a provision . . . permitting

15

him to use ‘Protected Material produced by Defendants in any pending or subsequent action

16

filed by Plaintiff’s counsel against [Defendant] and/or its subsidiary and related insurance

17

companies.” Siefe, 2018 WL 6340751 at *3. The court entered a “non-sharing” protective

18

order, finding that incorporating a sharing provision would “interfere with [the court’s] duty to

19

undertake the relevance inquiry dictated by Foltz.” Id. at 4. Including Plaintiffs’ requested

20

language here would have the same effect—allow collateral litigants access to confidential

21

information without establishing relevancy.

22

Plaintiffs argue the requested language could aid with resolving duplicative discovery

23

disputes in various venues. While the Court aims to avoid duplicative costs and discovery, “the

24

holding in Foltz applies to request of a collateral litigant and requires the collateral litigant to

25

demonstrate the relevance of the protected discovery to the collateral proceedings.” Seife, 2018

26
27
28

Plaintiffs point out that in Foltz plaintiffs were attempting to share information with other
attorneys. Motion at 3 n.2. Here, Plaintiffs indicate they only seek to share information in
collateral matters against Defendant where Plaintiffs’ counsel are the attorneys of record. Id.
3

4

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.644 Page 5 of 25

1

WL 6340751 at *4. Further, the court in Foltz clearly indicates that any “disputes over the

2

ultimate discoverability of specific materials covered by the protective order must be resolved

3

by collateral courts.” Foltz, 331 F.3d at 1133. Thus, regardless of the inclusion of the cross-use

4

language, each separate court would have to resolve its own discovery disputes. Moreover, as

5

Defendants indicate, Plaintiffs will still be able to share discovery with collateral litigants. See

6

Motion at 18.

7

procedures outlined in Foltz.

Collateral litigants simply have to seek such information pursuant to the

8

The Court, therefore, DENIES Plaintiffs’ request to include the language. Accordingly,

9

for good cause, the parties’ motion for a protective order is GRANTED, and the Court enters

10
11
12

the Protective Order attached as Exhibit 1 to this Order.
IT IS SO ORDERED.
Dated: 1/17/2023

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.645 Page 6 of 25

EXHIBIT 1

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10
11

SPENCER BUENO, an individual, and
RICHARD PARKER, an individual,

12

Plaintiffs,

13
14
15
16
17
18

Case No. 3:22-cv-00522-H-BLM
STIPULATED PROTECTIVE ORDER

vs.
MERCK & CO., INC., a New Jersey
Corporation; MERCK SHARP &
DOHME CORP., a New Jersey
Corporation; ORGANON & CO., a
Delaware Corporation; ORGANON LLC,
a Delaware Limited Liability Company;
and DOES 1-10, Inclusive,

Action Filed:
March 3, 2022
Action Removed: April 15, 2022
Trial Date:
None Set

Defendants.

19
20
21
22
23
24
25
26
27
28
6

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.646 Page 7 of 25

STIPULATED PROTECTIVE ORDER

1
2
3

The parties in the above-captioned action, (the “Action”), by and through their
respective counsel of record, have stipulated to the entry of the following protective order:
1.

4
5
6
7
8
9
10
11

PURPOSES AND LIMITATIONS

Disclosure and discovery activity in the Action is 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 and defending the Action
may be warranted. Accordingly, the Parties hereby stipulate to, and request that the Court
enter, the following Stipulated Protective Order (the “Order”).
The Parties acknowledge that this Order does not confer blanket protections on all
disclosures or responses to discovery and the protection it affords from public disclosure

12

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

13

treatment under applicable law.
2.

14

2.1

15
16

DEFINITIONS
Challenging Party: Party that challenges the designation of information

or items under this Order.
2.2

17

“CONFIDENTIAL” Information or Items: Information (regardless of

18

how it is generated, stored or maintained) or tangible things that contain confidential and

19

non-public development, financial or commercial information or non-public personal

20

information or any other information for which a good faith claim of need for protection

21

from disclosure can be made under the Federal Rules of Civil Procedure or other applicable

22

law.

23
24
25

2.3

Counsel: Outside Counsel of Record and In-House Counsel (as well as

their support staff).
2.4

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

26

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

27

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.

28

2.5

Disclosure or Discovery Material: All items or information, regardless
7

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.647 Page 8 of 25

1
2
3
4
5
6
7
8
9
10
11

of the medium or manner in which they are 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 the Action.
2.6

Expert: A person with specialized knowledge or experience in a matter

pertinent to the Action who has been retained by a Party or its Counsel to serve as an expert
witness or consultant in the Action.
2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items: Sensitive “CONFIDENTIAL Information or Items” (regardless of
how it is generated, stored or maintained) or tangible things that contain or otherwise
reference non-public trade secrets or other current or prospective confidential research,
development, commercial, or financial information, or other highly sensitive data, the

12

disclosure of which to another Party or Non-Party could cause a competitive disadvantage

13

to a Producing Party or could create a substantial risk of serious harm that could not be

14

avoided by less restrictive means, including, for example, strategic planning information

15

and pricing and cost data and analyses.

16

2.8

In-House Counsel: Litigation attorneys who are employees of a Party

17

to this action, including any attorney for Organon. In-House Counsel does not include

18

Outside Counsel of Record or any other outside counsel.

19
20

2.9

Non-Party: Any natural person, partnership, corporation, association,

or other legal entity not named as a Party in this Action.

21

2.10 Outside Counsel of Record: Attorneys who are not employees of a

22

Party to this action but are retained to represent or advise a Party to the Action and have

23

appeared in the Action on behalf of that Party or are affiliated with or contracted by a law

24

firm which has appeared on behalf of that Party.

25
26
27
28

2.11 Party: Any party to this Action, including all of its officers, directors,
and employees, and retained counsel of record.
2.12 Producing Party: Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
8

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.648 Page 9 of 25

1
2
3
4
5
6
7
8
9
10
11

2.13 Professional Vendors:

Persons or entities that provide litigation

support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and
their employees and subcontractors.
2.14 Protected Material: Any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY.”
2.15 Privacy Information: Any documents containing an individual's social
security number or taxpayer identification number (other than only the last four digits
thereof), an individual's birth date (other than only the year of the individual's birth), the
name of an individual known to be a minor (other than only the minor's initials), a financial

12

account number (other than only the last four digits thereof), "Personal Data," "Personally

13

Identifiable Information," "Sensitive Private Data," or "Nonpublic Personal Information"

14

as these terms are defined under federal or state laws, regardless of whether such

15

information has been designated as "CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

16

– ATTORNEYS’ EYES ONLY” (collectively “Privacy Information”).
2.16 Receiving Party: Party that receives Disclosure or Discovery Material

17
18

from a Producing Party.

19

3.

SCOPE

20

The protections conferred by this Order cover Protected Material produced in

21

discovery in the Action as well as (1) any information copied or extracted from Protected

22

Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and

23

(3) any testimony, conversations, or presentations by Parties or their Counsel that might

24

reveal Protected Material. However, the protections conferred by this Order do not cover

25

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

26

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

27

a Receiving Party as a result of publication not involving a violation of this Order; and (b)

28

any information obtained by the Receiving Party from a source who obtained the
9

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.649 Page 10 of 25

1
2
3
4
5
6
7
8
9
10
11
12
13
14

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 Action, 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 Action, with or without prejudice; and (2)
final judgment herein after the completion and exhaustion of all appeals, rehearings,
remands, trials, or reviews of the Action, including the time limits for filing any motions
or applications for extension of time pursuant to applicable law. This Court shall retain
jurisdiction for a period of one (1) year after the conclusion of this Action to enforce the
terms of the Protective Order.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Care in Designating Material for Protection. Each Party or

15

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

16

reasonable care to limit any such designation to specific material that qualifies for

17

protection under this Order.

18

5.2

Manner and Timing of Designations. Except as otherwise provided in

19

this Order or as otherwise stipulated or ordered, Disclosure or Discovery Material that

20

qualifies for protection under this Order must be clearly so designated before the material

21

is disclosed or produced.

22

Designation in conformity with this Order requires:

23

(a)

for information in documentary form (e.g., paper or electronic

24

documents, but excluding transcripts of depositions or other pretrial proceedings),

25

that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY

26

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains

27

Protected Material or, in the case of native file production, in conformity with the

28

Stipulation and Order Regarding Production of Documents and Information. A Party
10

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.650 Page 11 of 25

1
2
3
4
5
6
7
8
9
10
11
12

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 pages thereof, qualify for
protection under this Order. Then, before producing the specified documents, the
Producing Party must affix the appropriate legend (“CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each document
or page of a document that contains Protected Material.
(b)

for testimony given in deposition or in other pretrial proceedings, that

13

all deposition testimony or testimony during other pretrial proceedings shall be

14

treated as “HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY” for a period

15

of 30 days from the date of receipt by Outside Counsel of Record of a final transcript

16

during which a Designating Party may identify the specific portions of testimony as

17

to which protection is sought and specify the particular level of protection being

18

asserted. At the expiration of that 30-day period, only those portions that are

19

specifically identified will qualify for protection under this Order. Alternatively,

20

during that 30-day period, a Designating Party may, if appropriate, designate the

21

entire transcript as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Any

22

rough transcript that is generated before receipt by Outside Counsel of Record of a

23

final transcript also shall be treated during the 30-day period as if it had been

24

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

25

entirety unless otherwise agreed. After the expiration of that period, the transcript

26

shall be treated only as actually designated.

27

Each Party shall provide notice to all other Parties if it reasonably expects to

28

reference or use Protected Material at a deposition, hearing or other proceeding so
11

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.651 Page 12 of 25

1
2
3
4
5
6
7
8
9
10
11
12

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” or “HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY.”
(c)

for information produced in some form other than documentary form

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” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY”. 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) and specify the level of protection being asserted.
5.3

13

Inadvertent Failures to Designate. If corrected within a reasonable

14

period of time after production, an inadvertent failure to designate qualified information or

15

items does not, standing alone, waive the Designating Party’s right to secure protection

16

under this Order for such material. Upon correction of a designation, the Receiving Party

17

must make reasonable efforts to assure that the material is treated in accordance with the

18

provisions of this Order.

19
20
21

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. A Receiving Party must challenge a designation

22

of confidentiality within a reasonable period of time after such designation is made by the

23

Designating Party.

24

6.2

Meet and Confer. In the event of a challenge to a designation, the

25

Challenging Party shall initiate the dispute resolution process by providing written notice

26

of each designation it is challenging and describing the basis for each challenge. To avoid

27

ambiguity as to whether a challenge has been made, the written notice must recite that the

28

challenge to confidentiality is being made in accordance with this specific paragraph of the
12

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.652 Page 13 of 25

1
2
3
4
5
6
7
8
9
10
11

Order. The Parties shall attempt to resolve each challenge in good faith and on an informal
basis in accordance with Civil Local Rule 26.1. The Parties must begin the process by
conferring directly (in person or by telephone) 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.
6.3

Judicial Intervention with Respect to Confidentiality Designations. If

the challenge cannot be resolved through the meet and confer process, the Challenging
Party disputing the designation may apply to the Court for a ruling that a document (or
category of documents) designated as Protected Material by the Designating Party is not

12

entitled to the specified level of protection. The Challenging Party’s motion must be filed

13

within 21 days of the Designating Party’s response described in paragraph 6.2 above, and

14

the Parties must comply with Judge Major’s Chambers Rules. 4

15

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

16

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

17

harass or impose unnecessary expenses and burdens on other parties) may expose the

18

Challenging Party to sanctions.

19

While any challenge pursuant to this paragraph is pending, all Parties shall

20

continue to afford the material in question the level of protection to which it is entitled

21

under the Designating Party’s designation until the Court rules on the challenge.
7.

22

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

23

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

24

disclosed or produced by another Party or by a Non-Party in connection with this Action

25

only for prosecuting, defending, or attempting to settle the Action. Such Protected Material

26
27
28

See Honorable Barbara Lynn Major U.S. Magistrate Judge, Chambers Rules-Civil Cases §
V(A)-(F).

4

13

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.653 Page 14 of 25

1
2
3
4
5
6
7
8
9
10
11
12

may be disclosed only to the categories of persons and under the conditions described in
this Order. When the Action has been terminated, a Receiving Party must comply with the
provisions of Section 16 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. The recipient of any Protected Material that is provided under this Order
shall maintain such information in a reasonably secure and safe manner that ensures access
is limited to the persons authorized herein, and shall further exercise the same standard of
due and proper care with respect to the storage, custody, use, and/or dissemination of such
information as the recipient would use with respect to its own material of the same or
comparable sensitivity, but no less than the reasonable precautions set forth in Section 15
below.
7.2

13

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

14

otherwise ordered by the Court or permitted in writing by the Designating Party, a

15

Receiving Party may disclose any information or item designated “CONFIDENTIAL”

16

only to:

17

(a)

the Receiving Party’s Outside Counsel of Record in the Action, as well

18

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

19

to disclose the information for purposes of the Action;

20

(b)

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

21

the Receiving Party to whom it is reasonably necessary to disclose the information

22

for purposes of the Action;

23

(c)

Experts (as defined in this Order) of the Receiving Party to whom

24

disclosure is reasonably necessary for purposes of the Action and who have signed

25

the “Acknowledgment and Agreement to Be Bound” (Exhibit A), which shall be

26

maintained by the Receiving Party and disclosed to the Court only in the event of a

27

notice of breach of this Order to maintain the confidentiality of undisclosed

28

consultants;
14

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.654 Page 15 of 25

1
2
3
4
5
6
7
8
9
10
11
12

(d)

the Court and its personnel;

(e)

court reporters and their staff, professional jury or trial consultants,

mock jurors, and Professional Vendors to whom disclosure is reasonably necessary
for purposes of the Action and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);
(f)

during their depositions, witnesses in the Action who are or were

employed by a Party to whom disclosure is reasonably necessary and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g)

a plaintiff in the Action, to the extent the plaintiff elects to be present

for any deposition, to the extent the protected document is used at the deposition,
and who has signed the “Acknowledgement and Agreement to Be Bound” (Exhibit
A); and

13

(g)

the author or recipient of a document containing the information.

14

7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

15

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

16

writing by the Designating Party, a Receiving Party may disclose any information or item

17

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

18

(a)

the Receiving Party’s Outside Counsel of Record in the Action, as well

19

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

20

to disclose the information for purposes of the Action;

21

(b)

In-House Counsel of the Receiving Party to whom disclosure is

22

reasonably necessary for purposes of the Action and who have signed the

23

“Acknowledgement and Agreement to Be Bound” that is attached hereto as Exhibit

24

A, that has been designated to receive such information or item (“Designated In-

25

House Counsel”) and as to whom the Designating Party does not object to disclosure,

26

in accordance with Section 7.4 below;

27
28

(c)

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

necessary for purposes of the Action, and (2) who have signed the
15

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.655 Page 16 of 25

1
2
3
4

“Acknowledgment and Agreement to Be Bound” (Exhibit A), which shall be
maintained by the Receiving Party and disclosed to the Court only in the event of a
notice of breach of this Order to maintain the confidentiality of undisclosed
consultants ;

5
6
7
8
9

12

the Court and its personnel;

(e)

court reporters and their staff, professional jury or trial consultants, and

Professional Vendors to whom disclosure is reasonably necessary for this Action
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
A); and

10
11

(d)

(f)

the author or recipient of a document containing the information.

7.4

Procedures for Requesting Disclosure of Information or Items

Designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
(a)

13

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

14

the preceding paragraphs may disclose the subject Protected Material to the

15

identified Designated In- House Counsel or a Designated Plaintiff Representative

16

after seven business days of making the request and providing the required

17

information (collectively, the “Request Date”) unless, within five business days of

18

the Request Date, the Party receives a written objection from the Designating Party

19

setting forth the grounds on which the objection is based.
(b)

20

A Party that receives a timely written objection must meet and confer

21

with the Designating Party on an informal basis in accordance with Civil Local Rule

22

26.1 to try to resolve the matter by agreement within seven days of the written

23

objection. If the dispute is not resolved during the meet and confer, the parties must

24

comply with Judge Major’s Chambers Rules, as noted above in paragraph 6.3, in

25

seeking potential relief from the Court.

26

8.

27
28

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
16

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.656 Page 17 of 25

1
2
3
4
5
6
7
8
9
10
11

compels disclosure of any information or items designated in the Action as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
that Party must:
(a)

promptly notify in writing the Designating Party and include in such

notification 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 Order and must include a copy of this Order with the
notification; and
(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.
(d)

12

counsel shall take all other reasonable steps to ensure that persons

13

receiving Protected Material do not use or disclose such information for any purpose

14

other than for the purpose stated in the subpoena or court order in that specific

15

litigation.

16

If the Designating Party timely seeks a protective order, the Party served with the

17

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

18

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

19

before a determination by an appropriate court, unless the Party has obtained the

20

Designating Party’s permission, or is ordered to do so by any Court. The Designating Party

21

shall bear the burden and expense of seeking protection in that court of its confidential

22

material.

23
24
25

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.

APPLICABILITY OF THIS STIPULATED PROTECTIVE ORDER TO

26

NON-PARTIES

27

9.1

28

Order Applicable to Non-Parties.

The terms of this Order are

applicable to information produced by Non-Parties in the Action and designated as
17

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.657 Page 18 of 25

1
2
3
4
5
6
7
8
9
10
11

“CONFIDENTIAL.” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
Such information produced by Non-Parties in connection with this Action is protected by
the remedies and relief provided by this Order.
9.2

Service of Order with Non-Party Discovery Request. The Party issuing

any subpoena or other discovery request on any Non-Party in this Action shall include with
any such subpoena or discovery request a copy of this Order.
9.3

Request to a Party Seeking Non-Party Confidential Information. 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 agreement with the
Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(a)

promptly notify in writing the Requesting Party and the Non-Party that

12

some or all of the information requested is subject to a confidentiality agreement

13

with a Non-Party;
(b)

14

promptly provide the Non-Party with a copy of this Order, the relevant

15

discovery request(s), and a reasonably specific description of the information

16

requested; and

17

(c)

make the information requested available for inspection by the Non-

18

Party.

19

If the Non-Party fails to object or seek a protective order from this Court within 14

20

days of receiving the notice and accompanying information, the Party that received the

21

discovery request may produce the Non-Party’s responsive confidential information. If the

22

Non- Party timely seeks a protective order, the Party that received the discovery request

23

shall not produce any information in its possession or control that is subject to the

24

confidentiality agreement with the Non-Party before a determination by the Court. Absent

25

a court order to the contrary, the Non-Party shall bear the burden and expense of seeking

26

protection in this Court of its Protected Material.

27

10.

FILING OF PROTECTED MATERIAL

28

Before any materials produced in discovery, answers to interrogatories, responses to
18

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.658 Page 19 of 25

1
2
3
4
5
6
7
8
9
10
11

requests for admissions, deposition transcripts, or other documents which are designated
as Protected Material are filed with the Court for any purpose, the party seeking to file such
material must seek permission of the Court to file the material under seal. No document
may be filed under seal, i.e., closed to inspection by the public except pursuant to a Court
order that authorizes the sealing of the particular document, or portions of it. A sealing
order may issue only upon a showing that the information is privileged or protectable under
the law. The request must be narrowly tailored to seek sealing only of the confidential or
privileged material. To file a document under seal,
the Parties must comply with the procedures explained in Section 2.j of the Electronic Case
Filing Administrative Policies and Procedures Manual for the United States District Court
for the Southern District of California and Civil Local Rule 79.2. In addition, in accordance

12

with Judge Major’s preferences, a party must file a ‘public’ version of any document that

13

it seeks to file under seal. In the public version, the party may redact only that information

14

that is deemed Protected Material. The party should file the redacted document(s)

15

simultaneously with a joint motion or an ex parte application requesting that the

16

confidential portions of the document(s) be filed under seal and setting forth good cause

17

for the request.

18
19
20

The Parties agree to the following procedure before filing a motion to seal Protected
Material:
(a)

A Party wishing to use any Protected Material designated by another

21

Party as Confidential or Highly Confidential will provide a list of all

22

such documents to the designating party seven (7) days prior to the

23

filing due date and request that the Protected Material and any reference

24

thereto not be filed under seal.

25

(b)

If a Party identifies one or more designated document that it intends to

26

file less than seven days prior to the filing due date, the Party shall

27

notify the Designating Party immediately upon that determination and

28

request that the Protected Material and any reference thereto not be filed
19

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.659 Page 20 of 25

under seal. If the Party does not, at least forty-eight (48) hours prior to

1

the filing due date, identify the designated document and request that

2

the Protected Material and any reference thereto not be filed under seal,

3

then the Party must file a motion to seal the designated document and

4

any reference to the Protected Material pursuant to the Court’s

5

procedures.

6

(c)

7

If the Designating Party agrees in writing that the designated material
need not be filed under seal, the Protected Material may be filed in the

8

public docket. If the Designating Party does not agree in writing that

9

the Protected Material may be filed in the public docket, then the Party

10

wishing to use such Protected Material must file a motion to seal the

11
12

Protected Material, including any designated documents and any

13

reference to the Protected Material, pursuant to the Court’s procedures.

14

11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

15

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

16

Protected Material to any person or in any circumstance not authorized under this Order,

17

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

18

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

19

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

20

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

21

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

22

Additionally, if the Receiving Party discovers any loss of Protected Material or a

23

breach of security, including any actual or suspected unauthorized access, relating to the

24

produced Protected Material, the Receiving Party shall:

25
26
27
28

(a)

Promptly provide written notice to Producing Party of such breach

within twenty-four (24) hours of the breach discovery
(b)

Investigate and make reasonable efforts to remediate the effects of the

breach, and provide Producing Party with assurances that such breach shall not recur
20

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.660 Page 21 of 25

1
2
3
4
5
6
7
8
9
10
11

(c)

Party can reasonably ascertain the size and scope of the breach. The Requesting
Party agrees to cooperate with the Producing Party or law enforcement in
investigating any such security incident.
(d)
12.

NOTIFICATION IN THE EVENT OF A SECURITY BREACH OR

UNAUTHORIZED ACCESS TO PRODUCED MATERIAL
(a)

If the Receiving Party discovers any breach of security, including any

actual or suspected unauthorized access, relating to materials produced, the
Receiving Party shall:
(b)

Promptly provide written notice to Producing Party of such breach

within twenty-four (24) hours of the breach discovery.
(c)

14
15

The Requesting Party shall promptly take all necessary and appropriate

corrective action to terminate the unauthorized access and/or correct the breach.

12
13

Provide sufficient information about the breach that the Producing

Investigate and make reasonable efforts to remediate the effects of the

breach, and provide Producing Party with assurances that such breach shall not recur.
(d)

16

Provide sufficient information about the breach that the Producing

17

Party can reasonably ascertain the size and scope of the breach. The Receiving Party

18

agrees to cooperate with the Producing Party or law enforcement in investigating

19

any such security incident.
(e)

20

The Receiving Party shall promptly take all necessary and appropriate

21

corrective action to terminate the unauthorized access and/or correct the breach.

22

13.

23

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL

24

Nothing in this Order shall be construed to prohibit a Producing Party from seeking

25

relief from any inadvertent or unintentional disclosure of confidential, privileged, or work-

26

product information. Nothing in this Order shall diminish the legal rights of any person

27

seeking such relief. When a Producing Party gives notice to Receiving Parties that certain

28

inadvertently produced material is subject to a claim of privilege or other protection, the
21

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.661 Page 22 of 25

1
2
3
4
5
6
7
8
9
10
11

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), neither the attorney-client
privilege nor the work product protection is waived by inadvertent production in this
Action or any other action. This Protective Order shall be interpreted to provide the
maximum protection allowed by Federal Rule of Evidence 502(d).
14.

MISCELLANEOUS
14.1 Right to Further Relief and Modification by the Court. Nothing in this

Order abridges the right of any person to seek its modification by the Court in the future.
The Court retains the right to allow disclosure of any subject covered by this Order or to
modify this Order for good cause, in the interest of justice, or on its own order at any time
during these proceedings.

12

14.2 Right to Assert Other Objections. No Party waives through entry of

13

this Order any right it otherwise would have to object to disclosing or producing any

14

information or item on any ground not addressed in this Order. Similarly, no Party waives

15

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

16

Order.

17
18

14.3 Right of a Party to Use Its Own Documents. Nothing in this Order shall
affect a Party’s use or disclosure of its own documents in any way.

19

14.4 Right of a Party to Use Independently Obtained Documents. Nothing

20

in this Order shall impose any restrictions on the use or disclosure by a Party of documents,

21

material or information obtained by such Party independent of formal discovery

22

proceedings in this Action.

23

14.5 Right to Supplement or Request Deletion. If during the course of

24

litigation, a data subject with privacy rights pursuant to the Data Protection Laws identified

25

herein exercises his or her right to erasure of personal data contained within the previously

26

produced Protected Material, the Producing Party shall furnish newly redacted versions of

27

the Protected Material within a reasonable time. The Requesting Party will promptly

28

destroy the original version of the Protected Material and replace it with the redacted
22

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.662 Page 23 of 25

1
2
3
4
5
6
7
8
9
10
11

version. The Producing Party may also require the entire document destroyed and replaced
with a slip-sheet indicating the Protected Material is subject to erasure pursuant to the
applicable Data Protection Law.
14.6 Personally

Identifiable

Information.

Personally

identifiable

information that a party has designated as Protected Material as defined herein, based on
its good faith belief that the information is subject to federal or state laws or other privacy
obligations, or any of the information contained therein, shall be handled by Counsel for
the Receiving Party with the highest care.
15.

FINAL DISPOSITION

Within 60 days after the Final Disposition of this action, as defined in paragraph 4,
each Receiving Party must return all Protected Material to the Producing Party or destroy

12

such material. However, the Receiving Party may maintain its notes and coding of the

13

documents produced for use in another action averring the same allegations as this Action

14

against the same defendants in another jurisdiction until such time as all actions pending

15

in other jurisdictions reach final disposition. As used in this subdivision, “all Protected

16

Material” includes all copies, abstracts, compilations, summaries, and any other format

17

reproducing or capturing any of the Protected Material. Whether the Protected Material is

18

returned or destroyed, the Receiving Party must submit a written certification to the

19

Producing Party (and, if not the same person or entity, to the Designating Party) by the 60

20

day deadline that (1) identifies (by category, where appropriate) all the Protected Material

21

that was returned or destroyed and (2) affirms that the Receiving Party has not retained any

22

copies, abstracts, compilations, summaries or any other format reproducing or capturing

23

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

24

archival copies of all pleadings, motion papers, trial, deposition, and hearing transcripts,

25

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

26

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

27

Protected Material. Any such archival copies that contain or constitute Protected Material

28

remain subject to this Order as set forth in Section 4.
23

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.663 Page 24 of 25

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
28
24

22cv522-H(BLM)

Case 3:22-cv-00522-H-BLM Document 32 Filed 01/17/23 PageID.664 Page 25 of 25

EXHIBIT A

1

ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

2
3
4
5
6
7
8
9
10
11

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 Southern
District of California on _____________________________

in Spencer Bueno, et al.

v. Merck & Co., Inc., et al., Case No. 3:22-CV-00522-H-BLM. I agree to comply with and
to be bound by all 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

12

information or item that is subject to this Stipulated Protective Order to any person or entity

13

except in strict compliance with the provisions of this Order.

14

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

15

Southern District of California for the purpose of enforcing the terms of this Stipulated

16

Protective Order, even if such enforcement proceedings occur after termination of this

17

action.

18
19

Date: _________________________

20

City and State where signed: ______________________________

21

Printed name: _______________________________

22

Signature: _____________________________

23
24
25
26
27
28
25

22cv522-H(BLM)