Edwards Lifesciences Corporation v. Abbott Cardiovascular Systems, Inc.

          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, ...