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Guillermina Contreras, On Behalf of Herself and All Others Similarly Situated v. Johnson & Johnson Consumer Companies

April 4, 2013

GUILLERMINA CONTRERAS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
JOHNSON & JOHNSON CONSUMER COMPANIES, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Stephen J. Hillman United States Magistrate Judge

STIPULATED PROTECTIVE ORDER

Plaintiff Guillermina Contreras ("Plaintiff") and Defendant Johnson & Johnson Consumer Companies, Inc. ("Defendant"), through their counsel of record, hereby stipulate and respectfully request that the Court enter the following Protective Order (the "Order"), in order to expedite the flow of discovery material in this litigation, facilitate the prompt resolution of disputes over confidentiality, adequately protect confidential material, and ensure that protection is afforded only to material so entitled.

Plaintiff and Defendant (collectively, the "Parties") acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. The Parties further acknowledge, as set forth in Section 11, below, that this Order creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied when a Party seeks permission from the Court to file material under seal.

1.Scope of Order; Definitions

a. The term "Document" means all tangible items, whether written, recorded or graphic, whether produced or created by a Party or another person, whether produced pursuant to subpoena, to discovery request, by agreement, or otherwise.

b. The term "Discovery Materials" means all products of discovery and all information derived therefrom, including, but not limited to, all originals and copies of Documents, objects or things, deposition transcripts, responses to written discovery, information, or other written, recorded or graphic matter produced by a Party or third party (the "Producing Party") in the course of this litigation. This Order applies to all Discovery Materials.

c. The term "Confidential" means (1) sensitive business or scientific material or information which in the ordinary course is neither made available to the general public or the industry at large, and/or which the Producing Party would not normally reveal to third parties, or would cause third parties to maintain in confidence, such as sales, technical product details, commercial, financial, budgeting and/or accounting information, or marketing studies; or (2) information that the Producing Party reasonably believes constitutes a trade secret under applicable case law; or (3) other information which in the ordinary course is neither made available to the general public or the industry at large and to which access is restricted and efforts have been made to prevent the information from being broadly disseminated; or (4) other information that the Producing Party reasonably believes constitutes such highly sensitive technical or proprietary business information of such Producing Party that its disclosure might result in an unfair competitive, financial or commercial advantage to the Party receiving the information (the "Receiving Party") or competitors or disadvantage to the Producing Party, such as research, product development information, testing data and analysis, information about existing and potential customers, product formulas and formulations, business strategies, decisions and/or negotiations, and/or confidential and proprietary information about affiliates, parents, subsidiaries and third parties with whom the Parties to this action have had business relationships. A Producing Party may designate material or information as "Confidential" on behalf of another person or entity with whom the Producing Party has a confidential business relationship pursuant to which the Producing Party has come into possession, custody, or control of such material or information, and pursuant to which the Producing Party is obligated to take steps to protect the confidentiality of such material or information.

d. The term "Confidential Discovery Materials" means all Documents or Discovery Materials produced or discovered in this litigation that are designated Confidential.

e. This Order shall be understood to encompass not only those items or things which are expressly designated as Confidential, but also all copies, excerpts, and summaries thereof, as well as testimony and oral communications containing Confidential information or information derived therefrom.

2.Designation of Confidential Discovery Materials as "Confidential" or "Confidential -- Attorneys' Eyes Only"

a. Confidential Discovery Materials may be designated by a Party as "Confidential" or "Confidential -- Attorneys' Eyes Only." A "Confidential -- Attorneys' Eyes Only" designation is appropriate only where the Confidential Discovery Materials are so extremely sensitive that there is a real danger that the Producing Party could be prejudiced, or its competitive position in the market(s) in which it operates could be damaged, if the information is disclosed under the protection provided by a "Confidential" designation.

b. Any Document that the Producing Party intends to designate as Confidential shall bear the legend "Confidential -- Subject to Protective Order" or "Confidential -- Attorneys' Eyes Only -- Subject to Protective Order". The legend shall be affixed to each page of the Document to be designated, but shall not obscure any part of the text.

c. The designation of "Confidential" or "Confidential -- Attorneys' Eyes Only" Documents shall be made at the following time: (1) for Documents, at the time of the production of the Documents; (2) for written responses to interrogatories or requests for admissions, at the time of the written response; and

(3) for declarations and pleadings, at the time they are filed. d. No person shall attend depositions (or portions of depositions) during which Confidential Discovery Materials are disclosed unless such person is an authorized recipient of Confidential Discovery Materials under the terms of this Protective Order. If, during the course of a deposition, the response to a question would require the disclosure of Confidential Discovery Materials, the witness may refuse to answer or the Producing Party or Party whose Confidential Discovery Materials would be disclosed may instruct the witness not to answer or not to complete his answer, as the case may be, until any persons not authorized to receive Confidential Discovery Materials leaves the room. If information disclosed during depositions includes Confidential Discovery Materials, then counsel, the witness, or the Party whose Confidential Discovery Materials is to be or was disclosed, may state on the record at the deposition that a portion of the transcript, or if appropriate, the entire transcript and record of the deposition contains Confidential Discovery Materials and shall be sealed. Additionally, pursuant to the provisions of Paragraph 9(b) below, a Party or nonparty may designate such Confidential Discovery Materials in writing within thirty (30) days of the completion of the transcript of such deposition (as certified by the court reporter). Within forty-five (45) days of the completion of the transcript of such deposition (as certified by the court reporter), counsel for all the Parties shall be responsible for marking the certified transcript, and in all previously unmarked copies of transcripts, the Confidential Discovery Materials material by page and line number, as well as all exhibits containing Confidential Discovery Materials, with a legend of "Confidential -- Subject to Protective Order" or "Confidential -- Attorneys' Eyes Only -- Subject to Protective Order" as described in Paragraph 2(b) above. Within sixty (60) days of the completion of the transcript of such deposition (as certified by the court reporter), counsel for all Parties shall exchange such designated and marked transcripts, as well as all exhibits, with counsel for the other Party. Prior to the expiration of such sixty (60) day period, all information disclosed during a deposition shall constitute "Confidential Discovery Materials" unless otherwise agreed by the parties and the witness, or ordered by the Court.

e. It shall be the duty of the Party seeking protection of Confidential Discovery Materials to indicate to the other party and its counsel of record which of the materials and testimony are considered "Confidential."

f. Confidential Discovery Materials shall not be disclosed in any way to persons, other than as provided for under this Protective Order. Any person with custody of Confidential Discovery Materials shall maintain it in a manner which ensures that access to Confidential Discovery Materials is strictly limited to persons entitled to receive Confidential Discovery Materials in accordance with the provisions of this Protective Order.

3.Use of Confidential Discovery Materials

a. All Confidential Discovery Materials shall be used by the Receiving Party solely for the prosecution or defense of this litigation, and not for any other purpose, including any other litigation or judicial proceedings, or any business, competitive, governmental, commercial, or administrative purpose or function.

b. The terms of this Order shall in no way affect the right of any person: (1) to withhold or redact information on alleged grounds of immunity from discovery such as, for example, attorney/client privilege or the work product doctrine; or (2) to withhold or redact information on alleged grounds that such information is neither relevant to any claim or defense nor reasonably calculated to lead to the discovery of admissible evidence.

4.Non-Disclosure of Confidential Discovery Materials

Except with the prior written consent of the Producing Party, Confidential Discovery Materials, or any portion thereof, may not be disclosed to any person, including any plaintiff, except as set forth in Paragraph 5 below.

5.Permissible Disclosures of Confidential Discovery Material

a. Notwithstanding Paragraph 4, Confidential Discovery Materials designated as "Confidential" may be disclosed to and used only by the following persons in the litigation:

(1) A Party, or an officer, director, employee, partner, conservator, guardian, trustee or executor of a Party, to the extent reasonably necessary for the prosecution or defense of this litigation;

(2) inside counsel for a Party and the secretaries, paralegal assistants, and employees of such attorneys, to the extent reasonably necessary to render professional services in the litigation;

(3) counsel of record for a Party to the litigation and his/her partners, associates, secretaries, paralegal assistants, and employees, to the extent reasonably necessary to render professional services in the litigation;

(4) court officials involved in the litigation, including the Court and its staff, jurors, court reporters, persons operating video recording equipment at depositions, and any Special Master or referee appointed by the Court;

(5) any person designated by the Court in the interest of justice, upon such terms as the Court may deem proper; after notice to the Producing ...


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