United States District Court, C.D. California
February 11, 2014
A.O., a minor by and through his Guardians Ad Litem, ELISSAR SLIM and ZAID OMRAN, Plaintiff,
JOHNSON & JOHNSON, MCNEIL-PPC, INC., MCNEIL CONSUMER HEALTHCARE DIVISION OF MCNEIL-PPC, INC., MCNEIL MMP, LLC, and MCKESSON CORPORATION, Defendants.
PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION
MARGARET A. NAGLE, Magistrate Judge.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties' Stipulation for Protective Order ("Stipulation") filed on January 30, 2014, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been substantively modified by the Court's amendment of paragraph 5 of the Stipulation.
The parties are expressly cautioned that the designation of any information, document, or thing as Confidential, or other designation(s) used by the parties, does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Protective Order or to the parties' designation of any information, document, or thing as Confidential, or other designation(s) used by the parties, is wholly insufficient to warrant a filing under seal.
There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The parties' mere designation of any information, document, or thing as Confidential, or other designation(s) used by parties, does not - without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable - constitute good cause.
Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pacific Creditors Ass'n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought to be filed or introduced under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file documents under seal must be provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible.
Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all information, documents, and things discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise.
THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE HONORABLE FERNANDO M. OLGUIN, UNITED STATES DISTRICT JUDGE, INCLUDING THOSE APPLICABLE TO PROTECTIVE ORDERS AND FILINGS UNDER SEAL.
AGREED TERMS OF PROTECTIVE ORDER AS ADOPTED AND MODIFIED BY THE COURT
1. The parties deem as confidential and may designate as "Confidential" all or any portion of deposition transcripts, discovery responses, including interrogatory answers, responses to requests for admission, etc., and any documents, data, or other materials which contain: trade secrets or confidential research, development, commercial, personal, or financial information, medical records, or other confidential information (hereafter collectively referred to as "Confidential Information"). To designate Confidential Information the parties shall mark it "Confidential." To designate Confidential Information in deposition testimony the parties shall either note the designation on the deposition record or mark the specific portion of the transcript within twenty (20) days of receipt and provide it to the opposing party. All of A.O.'s medical records, whether received from his counsel or from a request or subpoena to his medical providers, shall be deemed marked as "Confidential" without any further notation needed. All documents made available for inspection from or copied from any New Drug Application (including any Investigational New Drug Application, Supplemental New Drug Application, Amended New Drug Application, or Abbreviated New Drug Application), shall be deemed marked as "Confidential."
2. Absent express authorization by the producing party or an order by the Court, Confidential Information shall be used only for the purpose of this litigation.
3. Confidential Information shall not be:
(a) Given, shown, made available, or communicated in any way (including, for example, by quoting verbatim, paraphrasing, or otherwise referencing in a manner that discloses Confidential Information) to anyone other than the Court and its personnel, the parties herein, their attorneys of record, employees of such attorneys who are essential to the prosecution of this action, consultants and experts retained by the parties, or as otherwise ordered by this Court. All consultants and experts who are allowed access to Confidential Information shall first sign the agreement attached hereto as "Exhibit A" and a fully-executed copy of Exhibit A shall be maintained by the party retaining the consultant or expert. The signed Exhibit A agreements for a consultant or expert shall not be disclosed to the opposing counsel unless and until the signing expert is disclosed in the litigation, the parties agree to allow disclosure of the agreement, or the Court orders such disclosure. However, this section shall not prevent counsel in this matter from sharing or discussing any Confidential Information obtained in this action with counsel who have filed a lawsuit against these same defendants alleging a reaction between Children's Motrin and Stevens-Johnson Syndrome and/or Toxic Epidermal Necrolysis following at least five days' written notice to counsel forthe party whose Confidential Information is involved so that such counsel will have an opportunity to determine if a satisfactory protective order has been entered in the other lawsuit which applies to such materials. If counsel is not so satisfied, counsel may object to the proposed disclosure. If an objection is made, Confidential Information shall not be shared until the objections are withdrawn or overruled by the Court.
(b) Reproduced or retained in any fashion whatsoever, except that for the purpose of preparation of this case for trial, copies or excerpts may be made, shown, or given to those authorized pursuant to subparagraph (a) above in accordance with the provisions of that subparagraph; provided, however, that within sixty (60) days after the resolution of this action, any Confidential Information, including without limitation any copies or excerpts (except for copies of materials submitted to the Court), shall be assembled and returned along with the originals to the producing party, or, in the alternative, shall be destroyed and a written certification provided to the producing party stating that any such materials have been destroyed.
(c) Notwithstanding the foregoing, each party may retain his, her, or its work product, including pleadings and memoranda filed with the Court. However, if work product with confidential information is retained, it must continue to be treated in a manner consistent with the Protective Order as long as it is kept or reviewed by the party or lawyer.
4. Neither Plaintiff nor anyDefendant is to disclose Confidential Information produced by the opposing party to any person or organization except those identified in subparagraph 3(a).
5. Any pleading, exhibit, or other document filed with the Court that discloses Confidential Information in any way shall be submitted with an application to file such material under seal in accordance with Local Rule 79-5.
6. If either party objects to the designation of any information as confidential, he, she, or it shall state his, her, or its objection and the basis therefore in writing to the producing party. Within seven (7) days from service of such an objection, the producing party shall reply in writing. The parties shall then confer concerning any such dispute in accordance with the local meet and confer requirements. If agreement cannot be reached, the objecting party shall, within five (5) days from the conclusion of the meet and confer process, send the producing party written notice of a continuing objection. Within fifteen (15) days after receipt of such notice, the producing party may move the Court for an order stating that the information designated as confidential is, in fact, Confidential Information within the meaning of this Protective Order and is entitled to the protections of this Protective Order Pending the Court's decision on the motion, the information designated as confidential shall be treated as though it were Confidential Information within the meaning of this Protective Order. If the producing party does not file such a motion within fifteen (15) days, and the objecting party has not agreed to extend the time for filing such a motion, the information designated as confidential shall not be treated as Confidential Information at the expiration of the fifteen (15) days.
7. If a party inadvertently fails to designate information as confidential, it may make such a designation subsequently by notifying the opposing party in writing of that inadvertent failure within a reasonable time after discovering it. Upon receipt of such notification, the opposing party shall treat the designated information as confidential, which does not preclude the receiving party from objecting to the confidential classification as outlined in paragraph 6 of this Protective Order. If the producing party's notification states that the inadvertently non-designated information is privileged and requests its return, the receiving party shall, in addition to treating the information as confidential, either: (1) promptly return the information and destroy all copies of it and any information derived from it, and instruct any persons to whom that information was disclosed to do the same; or (2) within ten (10) days of receipt of the notification and request, notify the producing party in writing that they will not do so. Within fifteen (15) days of receipt of that notification, the producing party may move the Court for an order that the information be returned, that all copies and derivative information be destroyed, and for such other relief as may be appropriate. If such a motion is filed within fifteen (15) days, pending the Court's decision on the motion the information shall be treated as Confidential Information within the meaning of this Order.
8. Any person who in the course of this litigation comes into possession of material designated by a party as Confidential Information, and who receives a subpoena (or other process) from any person (including natural persons, corporations, partnerships, firms, governmental agencies, departments, boards, or associations) seeking production or other disclosure of the Confidential Information, shall send as soon as possible a copy of the subpoena (or other process) via facsimile and regular mail to the undersigned counsel for the producing party, to permit the producing party to take action to protect the Confidential Information from disclosure. The recipient of the subpoena (or other process) shall not withhold information from production on the sole basis that it is confidential. Instead, in the absence of objection to production, the information shall be produced as Confidential subject to the terms of this Protective Order.
9. The Court shall retain jurisdiction over any person or organization authorized under subparagraph 3(a) above to receive Confidential Information, as necessary to enforce the provisions of this Protective Order.
10. This Protective Order is enforceable pursuant to the Federal Rules of Civil Procedure and the inherent powers of this Court.
IT IS SO ORDERED.
I, _______________________, hereby acknowledge that I am about to receive confidential information supplied in connection with the lawsuit entitled A.O. v. Johnson & Johnson, et al., U.S. District Court for the Central District of California, Case No. CV13-3474 FMO (MANx) (hereafter referred to as "A.O. Action"). I understand that this confidential information is to be provided to me pursuant to the terms and restrictions of the Protective Order (the "Order") that was issued by the United States District Court for the Central District of California in the A.O. Action.
I declare under penalty of perjury that I have received and read in its entirety and understand the Order. I agree to comply with and be bound by the terms of the Order. I understand that Confidential Information as defined in paragraph 1 of the Order and any notes or other records that may be made that reveal Confidential Information (including, for example, by quoting verbatim, paraphrasing, or otherwise referencing in a manner that discloses Confidential Information) shall not be disclosed to any person except as permitted by the Order. I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the Order.