UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
November 6, 2012
MCNEIL-PPC, INC. AND DOES 1 TO 10, DEFENDANTS.
The opinion of the court was delivered by: Thelton Henderson R O E. Judge
STIPULATION AND [PROPOSED] ORDER REGARDING CONFIDENTIAL INFORMATION
WHEREAS, certain documents and information may be sought, produced, or exhibited by
and among the parties to the above-styled proceeding (the "Action") which relate to the parties' 25 confidential and proprietary information that may be subject to protection pursuant to Fed. R. Civ. P. 26(c); and 27 28
REGARDING CONFIDENTIAL INFORMATION CASE NO. CV 11-0663 TEH
DRINKER BIDDLE & REATH LLP STIPULATION &[PROPOSED]ORDER ATTORNEYS AT LAW SAN FRANCISCO
WHEREAS, the parties will provide a significant amount of discovery materials in this
Action and the parties agree that a protective order will facilitate a timely and efficient discovery 3 process; 4
IT IS THEREFORE STIPULATED, by the parties through their respective counsel, as 5 follows: 6 7Scope
1. This Protective Order shall govern all documents, the information contained 9 therein, and all other information produced or disclosed during this Action whether revealed in a 10 document, deposition, other testimony, discovery response or otherwise, by any party in this 11 Action (the "Supplying Party") to any other party or parties (the "Receiving Party"). 12
2. Third parties who so elect may avail themselves of, and agree to be bound by, the 13 terms and conditions of this Protective Order and thereby become a Supplying Party for purposes 14 15 of this Order.
3. The entry of this Protective Order does not prevent any party from seeking a 17 further order of this Court pursuant to Fed. R. Civ. P. 26(c).
4. Nothing herein shall be construed to affect in any manner the admissibility at trial 19 or any other court proceeding of any document, testimony, or other evidence.
Confidential Information 22 23 character that the Supplying Party believes in good faith constitutes, reflects, discloses, or
5. "Confidential Information," as used herein, means information of any type, kind or contains information subject to protection under Fed. R. Civ. P. 26(c)(1)(G), whether it is a 25 document, information contained in a document, information revealed during a deposition or 26 other testimony, information revealed in an interrogatory response, or information otherwise revealed. Any transcript of an in camera hearing shall be treated as confidential pursuant to this 2 Order. 3
6. Specific documents and discovery responses produced by a Supplying Party may 4 be designated as containing Confidential Information by marking the pages of the documents, or 5 6 copies thereof, with the words "Confidential Information • Subject to Protective Order" without obscuring any part of the text. Such a designation shall subject the document and its contents to 8 this Order. 9
7. Any material produced or provided in this Action for inspection is to be treated by 10 the Receiving Party as Confidential Information pending the copying and delivery of any copies 11 of the same by the Supplying Party to the Receiving Party. 12
8. Information disclosed at any deposition taken in connection with this Action may 7 13 14 be designated by any party as Confidential Information in accordance with the procedures set forth below. All testimony provided at deposition shall be considered Confidential Information 16 for a set period of time as set forth below and the court reporter shall mark all pages of deposition 17 testimony taken in this Action with the designation "Confidential Information - Subject to 18 Further Confidentiality Review." In order to maintain the Confidential Information status of such 19 testimony, a party must notify all other parties and the court reporter in writing within forty-five 20 21 (45) days of receipt of the final transcript of the conclusion of a witness' testimony of the specific pages and lines of the transcript that should be treated as confidential. Only those portions of the transcript so designated at the end of that 45 day period shall be deemed Confidential 24 Information.
Confidential Information Produced in Electronic Form
9. This Order will also govern the use and distribution of Confidential Electronic Information.
10. The designation by the Supplying Party of the storage medium containing Confidential Electronic Information shall serve to designate each of the files on the medium. 3
11. Where the Receiving Party seeks to share Confidential Information with 4 permissible parties as described herein, the Receiving Party shall mark printouts of Confidential 5 Electronic Information with the legend, "Confidential -- Subject to Protective Order" prior to 6 7 disseminating the Confidential Information.
12. The Receiving Party shall mark the storage medium of any permissible copies of 9 the Confidential Electronic Information with the legend "Confidential -- Subject to Protective 10 Order." 11
13. The Receiving Party shall use reasonable efforts to prevent Confidential Electronic Information from being stored in a computer to which individuals not authorized under this Order 13 14 to view Confidential Information have access. The Receiving Party shall also take reasonable steps to ensure that printouts and copies of Confidential Electronic Information maintained by the 16 Receiving Party are kept in a manner that will prevent unauthorized users from viewing the 17 printouts or copies.
Permissible Disclosure of Confidential Information
14. The Receiving Party may show and deliver Confidential Information only to the 20 following people: 21 22
(a) Plaintiffs' counsel of record, including attorneys, clerical, secretarial and other staff employed or retained by such counsel;
(b) outside counsel for Defendants, including attorneys, clerical, secretarial and other staff employed or retained by such counsel;
(c) designated in-house counsel for Defendants, including the clerical, secretarial and other staff working directly for in-house counsel in the legal department;
(d) with respect to any Confidential Information produced by any Plaintiff or third-party Plaintiff, any employee of the Receiving Party to whom it is necessary to disclose such information for the purpose of assisting in, or 8 consulting with respect to, the preparation of this Action;
(e) experts and consultants retained by any Party for purposes of assisting the 10 Parties and their attorneys of record in the preparation and presentation of the claims or defenses in this case if the proposed recipient signs the attestation attached as Exhibit A; however, if any Plaintiff wishes to 13 14 disclose Confidential Information to such an expert or consultant who is or has been within the past six (6) months an employee, officer, director, 16 agent, contractor, subcontractor or non-litigation consultant of any 17 company that manufactures, markets, distributes, or sells pharmaceuticals, 18 the party wishing to make such disclosure shall provide the counsel who 19 designated such information as confidential with information concerning 20 21 22 the proposed recipient that does not identify the proposed recipient but is sufficient to permit an informed decision to be made with respect to any 23 potential objection. If the Supplying Party objects to the proposed 24 disclosure, it shall within ten (10) days (1) request that the Court direct the 25 party wishing to make disclosure to produce additional information about the proposed recipient and/or (2) submit such papers and argument as it 26 may feel are necessary to allow the Court to make an informed decision.
Because only the party seeking to make the disclosure may know who the proposed recipient is, it is the responsibility of the party seeking to make the disclosure to determine whether prior to making any disclosure whether the proposed recipient is a person described in this paragraph;
(f) Judges and court reporters, court personnel or videographers present at trial, conferences, hearings, arguments or depositions held in this case, 8 subject to the terms set forth below;
(g) any Special Master appointed by the Court in this case, and any members 10 of their staffs to whom it is necessary to disclose the information;
(h) Subject to the provisions of paragraph 8, the Receiving Party may show Confidential Information to a witness during a deposition, hearing, or trial in this case. Confidential Information shown to any witness during a deposition shall not lose its Confidential status through such use, and counsel shall exercise their best efforts and take all steps reasonably required to protect its confidentiality during such use. If, after a deposition is noticed or a hearing or trial is set, the Supplying Party objects to Confidential Information being shown to that witness, the Supplying Party shall attempt to confer with counsel to resolve the issue. If counsel are unable to resolve the issue themselves, counsel may seek an order from the Court prohibiting or limiting such use or for other relief. Furthermore, any deponent, other than a current employee of the Supplying Party or the author or recipient of a document containing Confidential Information, shall be shown a copy of this Order before being shown or examined about Confidential Information, and the terms of this Order will apply to any deponent who is shown or examined about Confidential Information;
(i) with respect to any Confidential Information produced by any Plaintiff or third-party Plaintiff, any treating physician or health care provider of the Plaintiff to whom it is necessary to disclose such information for the purpose of assisting in or consulting with respect to, the preparation of this 8 case;
(j) other persons who may be specifically designated by consent of the Supplying Party or pursuant to Court Order; and
(k) any physician who treated a plaintiff for whom there is a litigation need to disclose Confidential Information produced by Defendant if the physician signs the attestation that is attached hereto as Exhibit A.
15. Confidential Information shall not be disclosed or made available to persons other 16 than those listed above.
16. All persons to whom Confidential Information is provided under this Order shall 18 be furnished with a copy of this Order and shall be bound by its terms, and counsel for each party 19 shall maintain a log of all persons to whom they have provided a copy of this Order. Furthermore, 20 prior to the disclosure of Confidential Information to any person identified in Paragraph 14(e), 21 22 14(h), 14(i), or 14(k) hereof, besides being provided with a copy of this Order and agreeing to be bound by its terms, such person shall also execute a copy of the attestation which is attached as 24 Exhibit "A." Counsel for the Party to whom the Confidential Information was produced shall 25 obtain and maintain a copy of the executed attestations. 26
17. With respect to a testifying expert designated by any Party in this case, a copy of 27 such attestation shall be produced at the time the expert is deposed.
this litigation, a current director, officer, employee of, or counsel for a company other than 3 Defendants that is marketing or has in development any acetaminophen product, or a consultant, 4 other than an occasional consultant, who is currently consulting with respect to any 5 acetaminophen-containing product, the party wishing to make such disclosure shall give at least 6 7 ten (10) days advance notice in writing to the counsel who designated such information as confidential, stating the names and addresses of the person(s) to whom the disclosure will be 9 made. If, within the ten-day period, a motion is filed objecting to the proposed disclosure, the 10 designated document or item shall not be disclosed unless and until ten days have elapsed after 11 the appeal period from a Court order denying the motion. Alternatively, the party wishing to 12 make such disclosure may provide the counsel who designated such information as confidential 13 14 with information concerning the proposed recipient that does not identify the proposed recipient but is sufficient to permit an informed decision to be made with respect to any potential objection.
18. Before disclosing Confidential Information to any person who is, independent of If there is no consent to the disclosure within ten (10) days, the party wishing to make the 17 disclosure may submit the information to the Court for a determination of whether the disclosure 18 may be made. The objecting party will have opportunities to (1) request that the Court direct the 19 party wishing to make disclosure to produce additional information about the proposed recipient 20 and/or (2) submit such papers and argument as it may feel necessary to allow the Court to make 21 22 an informed decision. Because only the party seeking to make the disclosure may know who the proposed recipient is, it is the responsibility of the party seeking to make the disclosure to 24 determine prior to making any disclosure whether the proposed recipient is a person described in 25 this paragraph. 26 27 28
Use of Confidential Information
19. All Confidential Information produced or exchanged in the course of this Action 3 shall be used solely for the purpose of preparation and trial of this Action and shall not be used in 4 connection with any other matter or for any other purpose. Confidential Information shall not be 5 disclosed to any person except in accordance with the terms hereof.
20. Nothing contained herein shall be deemed to restrict in any manner any Party's use of its own Confidential documents or materials.
21. Nothing herein shall affect the right of any Party to seek additional protection 10 against the disclosure of any documents or materials.
Protection of Confidential Information
22. Counsel shall take all reasonable and necessary steps to assure the security of any Confidential Information and will limit access to Confidential Information to those persons 14 15 authorized by this Order. In addition, any summary or copy of information shall be subject to the terms of this Order to the same extent as the information or document of which such summary or 17 copy is made, and must be clearly labeled "Confidential Information -- Subject to Protective 18 Order." 19
23. If Confidential Information in the possession of a Receiving Party is subpoenaed 20 by any court, administrative or legislative body, or any other person or organization purporting to 21 have authority to subpoena such data or information, the party to whom the subpoena is directed 22 23 shall not, to the extent permitted by applicable law, provide or otherwise disclose such documents or information without first waiting ten (10) business days after notifying (and confirming 25 notification) counsel for the Supplying Party in writing of (1) the information and documentation 26 which is requested for production in the subpoena; (2) the date on which compliance with the 27 subpoena is requested; (3) the location at which compliance with the subpoena is requested; (4) 28 the identity of the party serving the subpoena; and (5) the case name, jurisdiction and index, 2 docket, complaint, charge, civil action or other identification number or other designation 3 identifying the litigation, administrative proceeding or other proceeding in which the subpoena 4 has been issued.
24. If a Receiving Party learns of any unauthorized disclosure of Confidential Information, the party shall immediately upon learning of such disclosure inform the Supplying Party of all pertinent facts relating to such disclosure and shall make all reasonable efforts to 9 prevent disclosure by each unauthorized person who received such information and to recover the 10 Confidential Information received by each unauthorized person. 11 12 materials, or information that it inadvertently produced or provided discovery of any Confidential 13 14 provide written notice to the Receiving Party that the document, thing or other information, 16 response, or testimony is Confidential Information and should be treated as such in accordance 17 with the provisions of this Order. Upon receipt of such notice, the Receiving Party must treat such 18 documents, things, information, responses, and testimony as Confidential Information, and upon 19 receipt of properly marked documents, shall return the unmarked documents and things and shall 20 not retain same, and shall take reasonable steps to ensure others have not retained copies thereof. 21 22 such information or documents pursuant to the terms and conditions of this Order, or without 24 following the terms and conditions of the Order, may subject the person making such disclosure 25 to a finding of contempt and the imposition of sanctions, costs or other penalty, as ordered by the 26 Court.
25. In the event a Supplying Party discovers after the production of any documents, Information without redacting, marking, or identifying it as confidential, the Supplying Party may
26. The disclosure of information or documents to any person not qualified to receive 2 proceedings, of a document subject to a claim of privilege, work product, or other statutory or 3 court-ordered confidentiality shall not result in a waiver of any of the foregoing protections in this 4 Action for the produced document or for any other privileged or immune documents containing 5 the same or similar subject matter. Furthermore, irrespective of what may have already occurred 6 7 or what may occur in the future in productions made during other proceedings, the fact of an inadvertent production by a party in this Action shall not be used as a basis for arguing that a 9 claim of privilege, work product, or other statutory or court-ordered confidentiality has been 10 waived in such other proceedings. If any party should inadvertently produce a document, upon 11 notice of such disclosure, all originals and copies thereof, as well as all notes or other work 12 product reflecting the contents of such materials, shall be immediately returned to the Supplying 13 14 the Receiving Party wants to challenge the claim of privilege, work product, or other statutory or 16 court-ordered confidentiality, it must also promptly present the information in dispute to the court 17 under seal for a determination of the claim. The Supplying Party must preserve the information 18 until the claim is resolved. If the Receiving Party does present the information in dispute to the 19 court and its motion/challenge is denied, then the Receiving Party shall promptly comply with the 20 provisions regarding the return of documents and materials derived from the privileged 21 22 documents.
28. Nothing herein shall prevent disclosure beyond the terms of this Order if the Party 24 designating the information as Confidential Information consents in writing to such disclosure or, 25 if the Court, after notice to all affected parties and a hearing, orders such disclosure. 26 27 including any appeals related thereto, all Confidential Information produced pursuant to this 28 TIPULATION REGARDING CONFIDENTIAL INFORMATION - 11 - CASE NO. CV 11-0663 TEH
27. The inadvertent production by any Party, whether in this Action or in any other Party, and such returned material shall be deleted from any litigation support or other database. If 29. Within five (5) years after conclusion of any attorney's last case in this Action, Order, including all copies and notes taken from such information containing summaries of such 2 Confidential Information (other than attorney work product which shall be clearly labeled as 3 containing Confidential Information, and shall be maintained as confidential under the terms of 4 this order), shall be destroyed by the party in possession thereof and certified to have been 5 destroyed by an affidavit provided to the Supplying Party. This includes all Confidential 6 7 Information provided to outside persons. Counsel for the party who disseminated the Confidential Information shall bear the burden of retrieving any such documents from outside persons and 9 destroying those documents in accordance with this paragraph. All such destruction shall be 10 completed in a manner reasonably calculated to preserve the confidentiality of the material both 11 during and after destruction.
30. For discovery material withheld from production pursuant to a claim of attorney- client privilege, work product protection, or other applicable privilege or immunity, the 16 designating party shall produce one or more privilege logs in Excel or a similar electronic form 17 that allows text searching and organization of data. The designating party will produce a 18 privilege log within 60 days following the production of documents from which the privileged 19 documents are withheld. The log will be accompanied by a glossary of the names and affiliations 20 of the legal personnel named in the log. The log will contain the following information for each 21 22 item not produced for reasons of privilege, to the extent providing this information will not destroy the privilege: 24 (a) The name(s) of the person(s) who created and received the discovery 23 25 material or a copy of it; (b) The date on which the document was created and/or received; and (c) A description of the nature of the document sufficient to enable the receiving party to assess the applicability of the privilege or protection.
31. Logging Emails. When there is a chain of privileged emails, the designating party 3 4 need only include one entry on the privilege log for the entire email chain, and need not log each 5 email contained in the chain separately. 6 7 32. Modifying Deadline for Privilege Logs. The parties may modify the deadlines for production of privilege logs by agreement. 9 33. Documents That Need Not Be Logged. Neither Plaintiffs nor Defendants are 10 required to include on their privilege logs (a) privileged communications with outside counsel 11 whose representation is relevant to the subject matter of this lawsuit or (b) redactions from 12 produced documents, provided the reason for the redaction appears on the redaction label (e.g., 13 14 Privileged, Work Product, Personal Information).
Changes in Designation of Confidential Information 16 34. Any party may object to the propriety of the designation (or redesignation) of 17 specific material as Confidential Information by serving a written objection upon the Supplying 18 Party's counsel. The Supplying Party or its counsel shall thereafter, within ten (10) calendar days, 19 respond to such objection in writing by either: (i) agreeing to remove the designation, or (ii) 20 stating the reasons for such designation. If the Objecting Party and the Supplying Party are 21 22 subsequently unable to agree upon the terms and conditions of disclosure for the material(s) in 23 issue, the document will have its designation removed unless within thirty (30) days after written notice that the parties' negotiations are ended, the Supplying Party moves the Court for an order 25 upholding the designation. On such motion, the Supplying Party shall have the burden of proving 26 that the material is Confidential Information. The material(s) in issue shall continue to be treated 27 as Confidential Information unless and until the Court decides otherwise. 28
35. Any Supplying Party may designate as Confidential Information or withdraw a Confidential Information designation from any material it has produced; provided, however, that 3 such redesignation shall be effective only as of the date of the redesignation. The redesignation 4 shall be accomplished by notifying counsel for each party in writing of such redesignation and 5 simultaneously producing a re-designated copy of such material. 6 7 Filing Papers in Court Records [This process is addressed by the Northern District's Local Rules] 9 36. All requests to submit to the Court papers consisting of, relating to, containing, 10 incorporating, reflecting, describing, or attaching Confidential Information, or to seal documents 11 filed with the Court shall comply with Local Civil Rules 7-11 and 79-5. 12 8 Miscellaneous Provisions 13 37. The Receiving party, whether Plaintiff or Defendants, shall bear the cost of 14 15 reproduction of all documents, materials, or other things, or portions thereof (and the information contained therein) which is stipulated to be eighteen cents ($.18) per page/image. This fee is 17 intended and construed only as a reimbursement for reproduction. It does not indicate any 18 transfer of ownership in the reproduced documents. 19 38. It is expressly understood by and between the Parties that in producing 16 20 Confidential Information in this litigation, the parties shall be relying upon the terms and 21 conditions of this Order. 22 23 39. By written agreement of the parties, or upon motion and order of the Court, the terms of this Order may be amended or modified. This Order shall continue in force until 25 amended or superseded by express order of the Court, and shall survive any final judgment or 26 settlement in this Action. 27 28
40. Notwithstanding any other provision in the order, nothing in this Order shall affect 2 or modify Defendants' ability to review Plaintiffs' information and report information to 3 regulatory agencies. 4
IT IS SO STIPULATED.
Dated: October 30, 2012 DRINKER BIDDLE & REATH LLP By:/s/ Sally F. White Sally F. White Attorneys for Defendant 11 12 Dated: November 1, 2012 MEUSER LAW GROUP,INC. 13 14 By: /s/ Mark P. Meuser 15 Mark P. Meuser 16 Attorneys for Plaintiffs 17 18 19 PURSUANT TO STIPULATION, IT IS SO ORDERED. TES DISTRI A CT Dated: _________________, 2012 11/05
The Honorable Thelton E. Henderson
JUDGE OF THE UNITED STATES I DISTRICT COURT
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
LANA ISAID, Case No. CV 11-0663 TEH 17 Plaintiff, 18 v. 19 MCNEIL-PPC, INC. and DOES 1 to 10, 20 Defendants.
STATE OF ) 24 ) SS: COUNTY OF ) 25 I, _____________________________________________, being duly sworn, state that:
27 28 is _________________________________________ and the address of my present employer is My present address is ____________________________________. My present employer
___________________________________________________________________. My present 2 occupation is _____________________________________________________. 3
I have received a copy of the Protective Order in this action. I have carefully read and 4 understand the provisions of the Order. 5
I will comply with all of the provisions of the Protective Order. I will hold in confidence, 6 7 will not disclose to anyone not qualified under the Protective Order, and will use only for purposes of this action, any Confidential Information, including the substance and any copy, 9 summary, abstract, excerpt, index or description of such material, that is disclosed to me. 10 I will return all Confidential Information that comes into my possession, and all 11 documents and things that I have prepared relating thereto, to trial or outside counsel for the party 12 by whom I am employed or retained or from whom I received such material when requested to do 13 14 so.
I understand that if I violate the provisions of the Protective Order, I will be subject to 16 sanctions by the Court and that the parties may assert other remedies against me. I hereby submit 17 to the jurisdiction of this Court for the purpose of enforcement of the Protective Order in this 18 action. 19
Sworn and subscribed to before me this 24
_____ day of ______________, 201___. 25 26
_________________________________ Notary Public 27
My Commission expires:
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