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Jane Foerster, On Behalf of Herself and All Others Similarly Situated v. Patenthealth

April 14, 2011


The opinion of the court was delivered by: Hon. John E. Mcdermott United States Magistrate Judge

Upon consideration of the Parties' Stipulated Protective Order, filed concurrently herewith, and for good cause shown, the Court GRANTS the Stipulated Protective Order as follows:

1. The Protective Order shall govern all Discovery Materials produced or disclosed in the Litigation by any Party, or by any non-party, or their respective counsel, retained experts, directors, officers, employees, or agents (referred to herein collectively as "Representatives") (the "Producing Party") to any other Party or its Representatives (the "Receiving Party"). The term "Discovery Materials" shall mean and include Documents (as defined below); answers to interrogatories; responses to requests for admissions; depositions; expert reports; briefs, memoranda, or writings filed with or otherwise supplied to the Court; and such other materials and information as may be produced or disclosed during the course of discovery in the Litigation. The term "Documents" shall mean every means of recording any form of communication or representation upon any tangible thing, including letters, words, pictures, sounds, or symbols, or combinations thereof, whether recorded by handwriting, printing, photostatic, or photographic means, magnetic impulse, tape, computer disk, CD-ROM or any other form of data storage, data compilation, or mechanical or electronic recording, and all other tangible things, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, which come within the meaning of "writing" contained in Rule 1001 of the Federal Rules of Evidence, or within the meaning of "document" or "tangible thing" contained in Rule 34 of the Federal Rules of Civil Procedure. The existence of this Protective Order shall not expand the permissible scope of discovery pursuant to Federal Rule 26.

2. The term "CONFIDENTIAL INFORMATION" shall mean and include non-public confidential information of or in the possession of the Producing Party as to which the Producing Party considers in good faith to contain Trade Secrets (as that term is defined in California Civil Code § 3426.1)*fn1 or confidential business, financial, or technical information that may be protected from public disclosure under the Federal Rules of Civil Procedure or California law, including without limitation non-public financial information regarding the party's goods, services and businesses and potential businesses; non-public information regarding business development, marketing and sales plans; non-public surveys and data; non-public technical information including non-public engineering, manufacturing and commercial information and know-how; non-public competitive analyses; customer and member information; confidential agreements with third parties; confidential communications with third parties; information received from third parties under conditions of confidentiality, for example, pursuant to non-disclosure agreements or confidentiality provisions; source code, proprietary databases and other proprietary electronically stored information.

3. Any Discovery Materials filed with the Court or produced or provided by any Party or non-party in the course of discovery or other proceedings in this action may be designated by such Party or non-party as CONFIDENTIAL INFORMATION so long as a good faith and reasonable basis exists for such a designation.

4. The term "Counsel" shall mean outside counsel of record in the Litigation and in-house counsel for Defendant, and the supporting personnel employed by the outside counsel of record, such as paralegals, translators, secretaries, clerks, shorthand reporters and document copiers.

5. An "Independent Expert or Consultant" is any person or organization with whom counsel or a party may deem it necessary to consult concerning technical, financial or other aspects of this case for the preparation or trial thereof. For the purposes of this Order, an Independent Expert or Consultant shall be restricted to a person who is retained or employed as a bona fide consultant or expert for purposes of this litigation, whether full or part time, by or at the direction of counsel for a party, and is not a past or a current employee of a Party or a Party's affiliates, and who, at the time of retention, is not anticipated to become an employee of a Party or a Party's affiliates. No Independent Expert or Consultant may be shown any CONFIDENTIAL INFORMATION until such person or organization reads this Protective Order and agrees to be bound by its terms by signing the Non-Disclosure Agreement attached hereto as Exhibit A. The Party who has retained such an Independent Expert or Consultant shall keep the original Non-Disclosure Agreement signed by the Independent Expert or Consultant and, if requested, make it available for inspection or copying by the Producing Party at the conclusion of the litigation and all appeals, unless the Independent Expert or Consultant has already been designated as a testifying expert, in which case it may be requested by the Producing Party after such designation.

6. Any Discovery Materials containing or including any CONFIDENTIAL INFORMATION shall be designated as such by the Producing Party by stamping or labeling it with, or otherwise affixing thereto, the following legend on every page of the Document:

"CONFIDENTIAL." 7. All CONFIDENTIAL INFORMATION not reduced to documentary or tangible form or which cannot be conveniently designated in the manner set forth in Paragraph 6 above shall be designated by the Producing Party by informing the Receiving Party in writing of the appropriate designation.

8. If a Producing Party discloses Discovery Materials which, during the pendency of this litigation, it later determines were not, but should have been, designated CONFIDENTIAL INFORMATION, the Producing Party may so designate such Discovery Material by serving a written notice upon the Receiving Party within ten (10) Court days of learning of the incorrect designation, along with a copy of such Discovery Materials marked with the appropriate designation. The Receiving Party shall then take reasonable steps to destroy or return to the Producing Party all unmarked copies of such Discovery Materials within ten (10) Court days and certify in writing that it has done so. The Receiving Party is relieved of liability for any good faith reliance on the previous designation.

9. If a Receiving Party wishes to challenge a Producing Party's designation of Discovery Materials as CONFIDENTIAL INFORMATION, the Receiving Party may, at any time, notify the Producing Party in writing that it requests a redesignation or release of confidentiality, stating the basis for its request. Within ten (10) Court days of such a written request, the Producing Party shall either (1) grant in writing the request; or (2) communicate in writing its refusal to do so, stating the basis for its refusal. If the Producing Party fails to communicate in writing its agreement to release confidentiality within ten (10) Court days, the Producing Party shall be deemed to have refused and the parties shall meet and confer and attempt to resolve the matter without Court intervention. Similarly, if a refusal is made or deemed made, the parties shall make a good faith effort to resolve the matter without Court intervention. If a refusal is made and not resolved by the parties, the Receiving Party shall file, within ten (10) Court days of the meet and confer, a motion (or, at the Court's preference, shall initiate other form of dispute resolution) with the Court in support of its request for redesignation or release of confidentiality in which the Producing Party shall bear the burden of showing the appropriateness of the confidentiality designation. If the Receiving Party fails to file a motion in the prescribed time, the Receiving Party shall be deemed to have withdrawn its objection, without prejudice to renewing such objection at a later date. Discovery Materials designated CONFIDENTIAL INFORMATION shall be given the CONFIDENTIAL INFORMATION treatment provided for in this Protective Order until the parties resolve the matter, the refusal to release confidentiality is withdrawn, or the Court orders re-designation of the Discovery Materials.

10. Whenever a deposition taken on behalf of any party involves the reference to or disclosure of CONFIDENTIAL INFORMATION:

(a) said deposition or portions thereof (including exhibits) that contains CONFIDENTIAL INFORMATION shall be so designated by a statement to such effect on the record in the course of the deposition. Alternatively, within ten (10) Court days after receiving the transcript containing CONFIDENTIAL INFORMATION, the party whose CONFIDENTIAL INFORMATION has been disclosed may designate pages of the transcript as confidential by listing the pages of the transcript containing CONFIDENTIAL INFORMATION and serving copies of the list to counsel for all parties so that it may be affixed to the face of the transcript and each copy thereof or notify counsel for all parties that it deems the entire transcript CONFIDENTIAL INFORMATION. Pending such designation by counsel, the entire deposition transcript, including exhibits, shall be deemed CONFIDENTIAL INFORMATION. If no designation is made within the prescribed time, the entire transcript will be deemed not to contain CONFIDENTIAL INFORMATION. Notwithstanding any automatic or specific designations under this paragraph, the other parties may object to CONFIDENTIAL INFORMATION designations in accordance with paragraph 9; and

(b) either party shall have the right to exclude from attendance at said deposition, during such time as the CONFIDENTIAL INFORMATION is to be referenced or disclosed, every individual excluding the deponent and his attorney, the court reporter, videographer and those individuals authorized under this Protective Order to receive CONFIDENTIAL INFORMATION.

11. All Discovery Materials designated as CONFIDENTIAL INFORMATION shall be treated as confidential by the Receiving Party and shall not be used or disclosed by the Receiving Party for any purpose other than in connection with this Action, and any appeals thereof, and until such ...

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