UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 26, 2012
ABARCA, RAUL VALENCIA, ET AL., PLAINTIFFS,
MERCK & CO., INC., ET AL.,
The opinion of the court was delivered by: David O. Carter Judge of the U.S. District Court Central District of California
JOHN F. BARG (SBN 60230; email@example.com)
STEPHEN C. LEWIS (SBN 66590; firstname.lastname@example.org)
R. MORGAN GILHULY (SBN 133659; email@example.com)
BARG COFFIN LEWIS & TRAPP, LLP 350 California St., 22nd Floor
San Francisco, California 94104-1435 Telephone: (415) 228-5400
Fax: (415) 228-5450
Attorneys for Defendants Merck & Co., Inc.,
Amsted Industries Incorporated, and Baltimore Aircoil Company, Inc.
STIPULATION; RECOMMENDATION OF SPECIAL MASTER; AND ORDER FOR ENTRY OF PROTECTIVE ORDER RE: CONFIDENTIAL DOCUMENTS, U.S.D.C. Case No. Civ. 1:07-cv-00388-DOC-DLB
WHEREAS, defendants Merck and Co., Inc. ("Merck"), Amsted Industries Incorporated ("Amsted"), and Baltimore Aircoil Company, Inc. ("BAC") (collectively, "Defendants") may be required to produce in discovery in this action 3 documents, information, and/or tangible objects that contain sensitive, confidential, 4 and proprietary business information ("Confidential Documents").
GOOD CAUSE STATEMENT
WHEREAS, good cause exists for the Court to enter this Protective Order, as 7 it is necessary to protect the Confidential Documents of Defendants.
WHEREAS, the Court's entry of this Protective Order will ensure that the 9 Confidential Documents will not be publicly disseminated or revealed in a manner 10 that would compromise or injure Defendants' business interests.
WHEREAS, in order to facilitate discovery and preserve the confidentiality 12 of the Confidential Documents, plaintiffs and Defendants (collectively, "the 13 Parties") stipulate to and request that the Court enter the following Protective Order 14 governing the production, disclosure, and use of the Confidential Documents.
IT IS HEREBY STIPULATED by and between plaintiffs and Defendants, through their respective attorneys as follows:
1. The producing party shall stamp, watermark, or otherwise mark each
Confidential Document with the following phrase ("Confidentiality Stamp"):
This document is subject to the
[date] Protective Order entered by the United States District Court for the Eastern District of California in Abarca, et al. v. Merck & Co., Inc., et al. (Case No. 1:07-CV-0388-DOC-DLB)
2. No Party shall disclose any Confidential Document bearing a
Confidentiality Stamp as set forth in Paragraph 1, any portion of any such Confidential Document, or the subject matter or contents of any such Confidential
Document which is not already contained in any document not subject to this Protective Order, to any person or entity, except as set forth herein.
The Parties receiving Confidential Documents in discovery in this action are the temporary custodians of the Confidential Documents. All Confidential Documents shall be 4 used by the Parties to whom such information is disclosed solely for the 5 prosecution, defense, or settlement of this action and shall not be used for any other 6 purpose including, but not limited to, any other litigation, whether in this Court or 7 otherwise, except as permitted by further order of the Court.
3. All copies (electronic, hard copy, or otherwise) of Confidential
Documents produced shall bear the Confidentiality Stamp. No copies made may in 10 any way alter, mar, or otherwise interfere with the Confidentiality Stamp, and if 11 any such alteration, marring or interfering with the Confidentiality Stamp occurs, 12 those copies shall be destroyed and the method and date of destruction shall be 13 reported to the Defendant who produced the Confidential Document in question 14 within 48 hours of said occurrence.
4. Confidential Documents may be used in depositions and marked as deposition exhibits in this case, but only if the portions of the exhibits that contain or refer to Confidential Documents bear the Confidentiality Stamp and are treated in accordance with this Order.
5. Confidential Documents may be referred to in written discovery requests and responses, but only if the portions of the particular discovery document that contain or refer to Confidential Documents bear the Confidentiality Stamp and are treated in accordance with this Order.
6. Confidential Documents may be referred to in motions, briefs, or other 24 papers filed with the Court in this case, but only if the portions of the particular 25 filing that contain or refer to the content of Confidential Documents bear the 26 Confidentiality Stamp and are treated in accordance with this Order. The Party 27 proposing to file or refer to Confidential Documents with the Court shall first obtain appropriate orders as may be required under pertinent Central District of California Local Rules (the "Local Rules").
7. Confidential Documents may be disclosed or referred to in testimony 3 at trial in the Action or offered in evidence at the trial of the Action subject to all 4 applicable Rules of Evidence. The sealing of the record of any such proceedings 5 shall be subject to the provisions of the Local Rules and further order of the Court. 6 The Party proposing to file or refer to such Confidential Documents shall first 7 either (a) seek an order sealing the Confidential Documents pursuant to the Local 8 Rules or (b) provide the Defendant who produced the Confidential Documents with 9 thirty-five (35) days notice in advance of trial of intent to use such Confidential 10 Documents, so as to provide that Defendant with sufficient time to file a motion to 11 seal such Confidential Documents or take other action as it deems necessary to 12 protect the Confidential Documents.
8. Subject to the terms and conditions of this Order, the Parties may 14 disclose Confidential Documents to the Court and Court employees, and to the 15 following persons or entities, to the extent necessary for purposes of litigation in 16 this action:
a. Counsel for the Parties who are actively engaged in the conduct of this action, including partners, associates, law clerks, paralegals, and secretaries employed or engaged by the Parties;
b. Employees, officers, or officials of the Parties who have need for such information for purposes of this action;
c. Employees of copy services and electronic database providers, but only to the extent necessary to copy or maintain an electronic database of the Confidential Documents;
d. Deposition witnesses in this action, to the extent necessary for the witnesses' preparation for and giving of testimony;
e. Experts or consultants hired or retained by the Parties or their counsel and actually performing work for the Parties for purposes of this action, who in the ordinary course of their retention are required to review the Confidential Documents to 3 prepare or formulate opinions or conclusions; and
f. Court reporters, videographers, and any special master or 5 discovery referee.
9. The Parties shall take all reasonable and necessary measures to ensure 7 that the persons described in paragraph 8(b) through (f) above do not view any 8 Confidential Documents unless and until they have:
a. Read this Order and agreed to be bound by its term; and
b. Completed and signed the Non-Disclosure Agreement
("Agreement") in the form attached hereto as Exhibit A.
10. Each person described in paragraph 8 above who is to view the Confidential Documents agrees to be and is deemed to be within the personal jurisdiction of this Court, including its contempt power, by signing a copy of the attached Agreement.
11. The Parties who receive Confidential Documents shall maintain an accurate and complete record of all persons described in paragraphs 8(b) through 18 (f) above who have been permitted to view the Confidential Documents, and shall 19 maintain custody of the Agreements and produce them for inspection by the 20 producing Defendant upon reasonable notice.
12. Should any Party become aware of any violation of this Order, such 22 Party may enforce this Order as provided in the applicable Local Rules. Further, 23 the Parties agree to:
a. Fully cooperate with Defendants in determining the nature of the breach of this Order and take reasonable precautions to assure that the breach does not reoccur;
b. Fully cooperate with Defendants in amending this Order as may be necessary to provide assurances that the breach does not reoccur; and
c. Immediately report any violation(s) of this Order to Defendants.
13. Within thirty (30) days following the final conclusion of this action, all Parties shall either return all Confidential Documents or destroy all Confidential Documents and provide confirmation in writing to the other Parties that all Confidential Documents have been destroyed.
14. Nothing herein shall preclude the Parties from entering into stipulations or other agreements relating to the confidentiality of proprietary information, including the Confidential Documents.
RECOMMENDATION OF SPECIAL MASTER
The Special Master recommends that the Court approve the Stipulation and Proposed Order for Entry of Protective Order set forth above.
JAMES L. SMITH Special Master
The Recommendation of the Special Master is accepted and approved. The 10 terms of the Protective Order set forth above are hereby entered by this Court.
IT IS SO ORDERED.
I, __________________, declare under penalty of perjury that:
1. My address is
2. My present employer is
3. My present occupation or job description is
4. I HEREBY CERTIFY AND AGREE that I have read and understand the terms of the __________, 2012 Protective Order regarding documents produced by defendants Merck & Co., Inc., Amsted Industries Incorporated, and Baltimore Aircoil Company, Inc. in the matter of Abarca, et al. v. Merck & Co., Inc., et al., United States District Court, Eastern District of California Case Number 1:07-CV- 0388 DOC-DLB, that I will hold in confidence and not disclose to anyone not bound by the Order any of the contents of any confidential information received under the protection of the Order, and that I will comply with and be bound by all of the terms and conditions of the Order.
5. Upon completion of my work, I will return or destroy all confidential 19 information obtained. I acknowledge that returning or destroying such materials 20 shall not relieve me from any of the continuing obligations imposed upon me by 21 the Order.
6. I hereby submit to the jurisdiction of this Court for the purpose of 23 enforcement of this Non-Disclosure Agreement.
Dated: ____________________ By: ______________________________
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