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Ao v. Johnson & Johnson

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,
v.
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 ...

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