United States District Court, C.D. California, Southern Division
EDWARDS LIFESCIENCES CORPORATION, a Delaware corporation, and EDWARDS LIFESCIENCES LLC, a Delaware corporation Plaintiffs,
v.
ABBOTT CARDIOVASCULAR SYSTEMS, INC., a California corporation, Defendant.
PROTECTIVE ORDER [DISCOVERY DOCUMENT: REFERRED TO
MAGISTRATE JUDGE JOHN D. EARLY]
JOHN
D. EARLY UNITED STATES MAGISTRATE JUDGE.
Based
upon the Stipulation (Dkt. 53-1) of the parties in the
above-captioned action (the “Action”), pursuant
to Rule 26(c) of the Federal Rules of Civil Procedure, the
Court hereby orders the parties to abide by, this Protective
Order on Confidentiality (the “Protective
Order”). The Court alters the proposed protective order
otherwise stipulated to by the parties to: (a) reflect that
the Protective Order does not govern the use or introduction
of evidence at trial, which will be determined exclusively by
the trial judge; (b) clarify that nothing in the Protective
Order authorizes a person or party to disobey a lawful order
or process issued by another court (see ¶ 23);
and (c) delete a requirement that the parties contact a
“Judicial Administrator” to schedule a hearing
(see ¶ 12).
This
Protective Order shall govern disclosures, production and
handling of documents, answers to interrogatories, responses
to requests for admissions, depositions, testimony at
pretrial hearings, pleadings, exhibits, and other information
or tangible things that qualify for protection under Federal
Rule of Civil Procedure 26(c), exchanged by the parties,
produced by third parties, or filed with the Court in this
Action (collectively, “Exchanged Information”).
In support of this Order, the Court finds that:
GOOD
CAUSE STATEMENT
This
Action is likely to involve trade secrets, customer and
pricing lists and other valuable research, development,
commercial, financial, technical and/or proprietary
information for which special protection from public
disclosure and from use for any purpose other than
prosecution of the litigations between the parties is
warranted. Such confidential and proprietary materials and
information consist of, among other things, confidential
business or financial information, information regarding
confidential business practices, or other confidential
research, development, or commercial information (including
information implicating privacy rights of third parties),
information otherwise generally unavailable to the public, or
which may be privileged or otherwise protected from
disclosure under state or federal statutes, court rules, case
decisions, or common law. The parties acknowledge that
disclosure of this information would cause competitive harm
to the parties. For example, the parties believe that
competitors will gain an unfair advantage if they learn the
parties' Confidential Information, such as financial
information, accounting information, customer lists, vendor
lists, costs or profits structure, sales information,
proprietary product designs, product lines, business and
marketing strategy or information about operations.
Accordingly, to expedite the flow of information, to
facilitate the prompt resolution of disputes over
confidentiality of discovery materials, to adequately protect
information the parties are entitled to keep confidential, to
ensure that the parties are permitted reasonable necessary
uses of such material in preparation for trial, to address
their handling at the end of the litigation, and serve the
ends of justice, a protective order for such information is
justified in this matter. It is the intent of the parties
that information will not be designated as confidential for
tactical reasons and that nothing be so designated without a
good faith belief that it has been maintained in a
confidential, non-public manner, and there is good cause why
it should not be part of the public record of this case.
ACKNOWLEDGMENT
OF PROCEDURE FOR FILING UNDER SEAL
As set
forth in Section 23, below, this Protective Order does not
entitle the parties to file confidential information under
seal; Local Civil Rule 79-5 sets forth the procedures that
must be followed and the standards that will be applied when
a party seeks permission from the court to file material
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. See Kamakana v.
City & County of Honolulu, 447 F.3d 1172, 1176 (9th
Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d
1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999)
(even stipulated protective orders require good cause
showing), and a specific showing of good cause or compelling
reasons with proper evidentiary support and legal
justification, must be made with respect to Confidential
Information that a party seeks to file under seal. The
parties' mere designation of Exchanged Information as
Confidential Information does not- without the submission of
competent evidence by declaration, establishing that the
material sought to be filed under seal qualifies as
confidential, privileged, or otherwise protectable-constitute
good cause.
Further,
if a party requests sealing related to a dispositive motion
or trial, then compelling reasons, not only 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 Pintos v. 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.
The
parties shall serve redacted versions of any documents filed
under seal within 48 hours of the filing and shall take
reasonable measures to minimize redactions to documents filed
under seal.
SCOPE
1. The
protections conferred by this Order cover not only Exchanged
Information, but also (1) any information copied or extracted
from Exchanged Information; (2) all copies, excerpts,
summaries, or compilations of Exchanged Information; and (3)
any testimony, conversations, or presentations by parties or
their counsel that might reveal Exchanged Information.
However, the protections conferred by this Order do not cover
the following information: (a) any information that is in the
public domain at the time of disclosure to a receiving party
or becomes part of the public domain after its disclosure to
a receiving party as a result of publication not involving a
violation of this Order, including information that has
become part of the public record through trial or otherwise;
and (b) any information known to the receiving party prior to
the disclosure or obtained by the receiving party after the
disclosure from a source who obtained the information
lawfully and under no obligation of confidentiality to the
designating party.
DISCLOSURE
AND USE OF CONFIDENTIAL INFORMATION
2. Any
party or non-party may designate as “CONFIDENTIAL,
” “HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY,
” or “PROSECUTION BAR INFORMATION” any
Exchanged Information that contains non-public, sensitive
trade secret, marketing, customer, financial, research,
product-development, regulatory, manufacturing/distribution
or other information protectable under Federal Rule of Civil
Procedure 26(c)(1)(G) (collectively “Confidential
Information”).
3. The
parties are currently litigating in a second action in the
District of Delaware: Abbott Cardiovascular Systems, Inc.
et al v. Edwards Lifesciences Corp. et al, No. 19-149-MN
(D. Del.) (“the Delaware Action”). Subject to the
provisions of this Protective Order, and any protective order
entered in the Delaware Action, documents and things produced
in this Action by a party or non-party under this Protective
Order may also be used and disclosed by the parties in the
Delaware Action as if they had been produced in that Action.
The
production of any documents under this paragraph is not an
admission of relevance or admissibility for any given action.
4.
Confidential Information of the disclosing party shall be
used by receiving parties solely for purposes of this Action,
or as set forth in paragraph 3 above, or absent a court
order, except that the parties are permitted to disclose
Confidential Information to no more than a total of two
foreign attorneys (or, in the UK, where both barristers and
solicitors are engaged as counsel of record no more than
three foreign attorneys) representing the Party and/or its
related entities in each of the “Related Foreign
Actions” listed below (“Designated Foreign
Counsel”)[1], and their clerical employees and
assistants, for purposes of providing advice and counseling
with respect to coordination only and not for use in the
Related Foreign Actions. Such Confidential Information may
not be disclosed to the court or decision-making body or
otherwise relied upon as evidence in any of the Related
Foreign Actions absent a court order. For the avoidance of
doubt, this provision does not restrict the use of
Confidential Information for any purpose if that Confidential
Information was rightfully obtained by means other than
through discovery in this Action. Prior to disclosure of
Confidential Information to Designated Foreign Counsel, the
party seeking disclosure shall provide written notice to the
producing party identifying the names of the Designated
Foreign Counsel. If the producing party objects to the
disclosure of Confidential Information to the Designated
Foreign Counsel, the producing party shall object in writing,
within five (5) business days of receipt of the written
notice and state the basis for its objection. Within five (5)
business days of the written objection, the parties shall
meet and confer. If the parties do not reach resolution, the
party seeking disclosure shall follow the procedures set
forth by the Court for raising discovery disputes with the
Court. The Related Foreign Actions are:
a. Abbott Medical GmbH v. Edwards Lifesciences Corp. and
Edwards Lifesciences Services GmbH, Ref. No. 4b O 8/19
(Germany);
b. Abbott Cardiovascular Systems Inc., Evalve Inc., and
Abbott Medical Italia SpA v. Edwards Lifesciences LLC and
Edwards Lifesciences Italia SpA, Docket No. 4251/2019/CC
(Italy);
c. Evalve, Inc., Abbott Cardiovascular Systems, Inc., and
Abbott Medical (Schweiz) AG v. Edwards Lifesciences SA,
Edwards Lifesciences Technology sàrl, Edwards
Lifesciences IPRM SA, and Mitral Valve Technologies
sàrl, Docket No. S2019002 (Switzerland);
d. Evalve Inc., Abbott Cardiovascular Systems., Inc., and
Abbott Medical U.K. Ltd. v. Edwards Lifesciences Ltd.,
Claim No. HP-2019- 000003 (United Kingdom);
e. Opposition by Edwards Lifesciences Corporation to EP 1 626
810 (Application No. EP04752603.3); and
f. such other foreign actions as may be agreed by the parties
such agreement not to be withheld without reasonable basis.
5.
Confidential Information shall be initially produced only to
outside counsel of record representing the parties in this
Action.
6.
Outside counsel of record may disclose the respective
categories of Confidential Information to the following
persons for use in connection with this Action under the
conditions set forth in this Protective Order, or in
connection with a Related Foreign Action solely as provided
for by Paragraph 4 above:
a. Information designated as PROSECUTION BAR INFORMATION
(including, pursuant to Paragraph 10(d), information
designated as HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
before the date of this Protective Order):
1. (a) other outside counsel who have been retained by the
parties with respect to this Action, including all attorneys,
paralegals, law students, stenographic and clerical employees
working under the supervision of such counsel, as well as
court reporters, interpreters, translators, copy services,
litigation support (including document imaging), and
database/coding services retained by counsel or (b)
Designated Foreign Counsel in a Related Foreign Action;
2. any expert or consultant, not an employee of a party, who
is retained to assist in preparation of this Action for
trial, and clerical employees, assistants, researchers and
technicians of, or under the supervision of, such experts,
with disclosure only to the extent necessary to perform such
work;
3. the Court, under seal as provided in this Protective
Order;
4. in-house attorneys who are (a) providing instruction
and/or assistance to outside counsel with respect to this
Action and who are qualified to access PROSECUTION BAR
INFORMATION, pursuant to paragraph 7 below, and (b) subject
to a Prosecution Bar as defined below;
5. court reporters present in their official capacity at a
hearing, deposition, or other proceeding in this Action;
6. professional jury or trial consultants and mock jurors who
have signed the Declaration (Exhibit A), which does not need
to be disclosed to the designating party unless the Court for
good cause orders otherwise; and
7. graphics or design consultants retained to prepare
demonstratives or other exhibits for use in this Action.
b.
Information designated as HIGHLY CONFIDENTIAL -
ATTORNEYS' EYES ONLY after the date of this Protective
Order:
1. those persons described in Paragraph 6(a); and
2. in-house attorneys who are (a) providing instruction
and/or assistance to outside counsel with respect to this
Action and who are qualified to access HIGHLY CONFIDENTIAL -
ATTORNEYS' EYES ONLY information, pursuant to Paragraph 7
below, ...