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Centocor Ortho Biotech, Inc. v. Genentech

October 20, 2009

CENTOCOR ORTHO BIOTECH, INC., PLAINTIFF,
v.
GENENTECH, INC. AND CITY OF HOPE, DEFENDANTS.



The opinion of the court was delivered by: The Honorable Mariana R. Pfaelzer

STIPULATED PROTECTIVE ORDER

Whereas Plaintiff Centocor Ortho Biotech, Inc. and Third-Party Defendants Global Pharmaceutical Supply Group, LLC, Centocor Biologics, LLC, and JOM Pharmaceutical Services, Inc. (collectively, "Centocor") and Defendants Genentech, Inc. ("Genentech") and City of Hope (collectively, "parties") -- parties to the action entitled Centocor v. Genentech, et al., Case No. CV08-03573 (the "Action") -- each believe that certain information that is or will be encompassed by discovery demands made by one upon the other, or by a party upon a non-party, constitutes confidential and proprietary commercial, technical, development, or business information, research, and/or trade secrets, within the meaning of Federal Rule of Civil Procedure ("Rule") 26(c); whereas each of the parties believes that it would serve its interests to conduct discovery and proceedings herein under a protective order pursuant to that rule; and whereas each of the parties has made a showing, as set forth in the "Good Cause Statement" below, that "good cause" exists to believe that public disclosure and/or unfettered disclosure of such information to other parties will result in prejudice or competitive harm, the parties have stipulated to provide access to and accept such information, documents and things, subject to certain protective provisions hereinafter set forth.

IT IS HEREBY ORDERED as follows: 1. This Protective Order shall apply to all information, documents and other items subject to discovery in this Action, including without limitation testimony adduced at depositions upon oral examination or upon written questions pursuant to Rules 30 and 31, answers to interrogatories pursuant to Rule 33, documents produced pursuant to Rule 34, information obtained from inspection of premises or things pursuant to Rule 34, answers to requests for admission pursuant to Rule 36, and documents, things, or testimony obtained from non-parties pursuant to Rule 45, and regardless of whether the material is filed with the Court.

2. As used in this order, "Confidential Material" shall mean documents, or any portion thereof, and other forms of evidence, information, or discovery contemplated under Rules 26 through 36 and 45 that, in the good faith and reasonable opinion of the party or non-party producing the discovery (hereinafter "Producing Party"), contains sensitive technical or business information whose public disclosure poses a meaningful risk of competitive, business, or other harm to the Producing Party, as identified below.

GOOD CAUSE STATEMENT

It is the intent of the parties and the Court that materials will not be designated "Confidential" for tactical reasons in this case and that nothing be so designated without a good faith and reasonable belief that there is good cause why it should not be part of the public record of this case.

Categories of "Confidential" documents, information, or other discovery that the parties may seek to designate under this Protective Order include the following:

(a) Information that is the subject of a non-disclosure or confidentiality agreement or obligation. Good cause exists for protected or restricted disclosure of such information because public disclosure may result in the violation of such agreement or obligation;

(b) The names or other information tending to reveal the identities of a party's supplier. Good cause exists for protected or restricted disclosure because such information is frequently kept nonpublic as a matter of practice to protect highly-sensitive business and proprietary information, the public disclosure of which would pose a meaningful risk of competitive and business harm;

(c) The names or other information tending to reveal the identities of a party's distributors. Good cause exists for protected or restricted disclosure because such information is frequently kept nonpublic as a matter of practice to protect highly-sensitive business and proprietary information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

(d) The names or other information tending to reveal the identities of a party's potential or actual customers, or tending to reveal potential or actual customer needs, specifications, and requests. Good cause exists for protected or restricted disclosure because such information is frequently kept nonpublic as a matter of practice to protect highly-sensitive business and propriety information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

(e) Research and development data, reports, and information (to the extent not previously publicly disclosed). Good cause exists for protected or restricted disclosure because the parties' research and development efforts are routinely kept nonpublic as a matter of practice to protect highly-sensitive technical and proprietary data and information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

(f) Information on efforts taken to obtain regulatory approval for products or processes (to the extent not previously publicly disclosed). Good cause exists for protected or restricted disclosure because such efforts are routinely kept nonpublic as a matter of practice to protect highly-sensitive technical, business, and proprietary data and information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

(g) Proprietary technical information, including product designs, product specifications, information on specific manufacturing processes, techniques, and systems; laboratory notebooks; technical reports and memoranda; technical specifications; technical drawings; and test data. Good cause exists for protected or restricted disclosure because such information is routinely kept nonpublic as a matter of practice to protect highly-sensitive technical, business, and proprietary data and information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

(h) Information tending to reveal corporate organization and relationships, structure, strategies, and planning (to the extent not previously publicly disclosed), including corporate meeting minutes, agendas, correspondence, or summaries. Good cause exists for protected or restricted disclosure of at least some such information that is routinely kept nonpublic as a matter of practice to protect highly-sensitive business and proprietary data and information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

(i) Information relating to actual or potential efforts or strategies to acquire or evaluate patents or other intellectual property or technology, including pending and draft patent applications; patent, prior art, or other intellectual property searches or evaluations; opinions of counsel; actual or potential licensing of intellectual property or technology; and licensing policies, practices, or strategies. Good cause exists for protected or restricted disclosure because such information is routinely kept nonpublic as a matter of practice to protect highly-sensitive business, technical, and proprietary data and information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

(j) Financial information, including information as to specific budgets, revenues, costs, profits, margins, pricing, sales revenues and unit volumes, and royalty payments (to the extent not previously publicly disclosed). Good cause exists for protected or restricted disclosure because such information is routinely kept nonpublic as a matter of practice to protect highly-sensitive financial, business and proprietary data and information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

(k) Information tending to reveal market analyses, business or marketing plans, market projections or forecasts, and strategies for marketing, selling, or pricing (to the extent not previously publicly disclosed). Good cause exists for protected or restricted disclosure because such information is routinely kept nonpublic as a matter of practice to protect highly-sensitive business and proprietary data and information, the public disclosure of which would pose a meaningful risk of competitive and business harm.

3. As used in this order, "document" shall have the meaning ascribed to it in Rule 34(a).

4. Any document, or portion thereof, and any other form of evidence or discovery contemplated under Rules 26 through 36 and 45 that, in the good faith and reasonable opinion of the Producing Party, contains Confidential Material may be designated by the Producing Party as "Confidential." Confidential Material, designated as such in accordance with this Order, shall be disclosed or made available only to persons specified in Paragraphs 7 and 8 herein, and is not to be copied or used except for the limited purpose of conducting this litigation, including preparing exhibits for affidavits, depositions, hearings, or for trial. All copies of material properly designated as "Confidential," and all extracts, abstracts, charts, summaries, and notes made from material designated as "Confidential," shall be Confidential Material.

5. All documents produced herein by each party shall bear identifying numbers at the time a copy is given to the party receiving the discovery responses (hereinafter "the Receiving Party"). In the case of material or information disclosed in a non-paper medium (e.g., slides, computer disks, audiotape), the identifying number may be affixed on the outside of the medium or any container.

6. Confidential Material may be made subject to the Protective Order as follows:

(a) With respect to documents or copies provided by the Producing Party to the Receiving Party, by marking the initial page and the page or pages on which any Confidential Material appears with the legend "CONFIDENTIAL." The Producing Party shall so mark documents or copies prior to or at the time of supplying them to the other party.

(b) With respect to documents or copies produced by the Producing Party for inspection by opposing counsel, such documents are deemed to be, and shall be treated as, Confidential Material, whether or not so marked, unless and until opposing counsel requests copies of such documents and the Producing Party supplies such copies to opposing counsel. Copies of such documents supplied to opposing counsel shall be made subject to this Order if, prior to or at the time of supplying them to opposing counsel, the Producing Party marks such copies as "CONFIDENTIAL," as provided in Paragraph 7(a) above.

(c) In the case of depositions, a deposition transcript or a portion thereof may be designated as Confidential by so designating on the record at the deposition and shall remain Confidential without further action of the designating party. Alternatively, a deposition transcript or a portion thereof may be designated as "Confidential" within thirty (30) calendar days following the mailing of the transcript or videotape by the court reporter or videographer. Such notice thereof shall be made in writing to the reporter, with copies to all other counsel, designating the portions of the transcript that contain Confidential Materials as Confidential and directing the reporter to mark that portion of the transcript accordingly. Each party shall attach a copy of such written statement to the face of the transcript and each copy thereof in its possession, custody or control. If no confidentiality designation is made at the time of a deposition, such deposition nonetheless shall be treated as Confidential from the taking of the deposition until thirty (30) calendar days after being notified by the court reporter or any party that the transcript is available. The portion of any videotape of a deposition corresponding to the portion of any transcript of that deposition designated as Confidential also shall be treated as Confidential under this Protective Order to the same extent as the transcript.

(d) In the case of responses to interrogatories or other discovery requests, or responses, affidavits, briefs, memoranda or other papers filed with the Court, information contained therein may be designated as Confidential Material by prominently marking the cover of such paper "CONFIDENTIAL." For interrogatory responses and documents filed with the Court, if only a portion of the document contains Confidential Material, then the information shall be designated as such by marking only that portion "CONFIDENTIAL." Such identification shall be made prior to or at the time the documents are filed with the Court or served on another party.

(e) In the case of Confidential Material that is disclosed in a non-paper medium (e.g., slides, computer disks, audiotape), the notation "CONFIDENTIAL" shall be affixed ...


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