United States District Court, C.D. California, Western Division
COOLEY
LLP MICHAEL ATTANASIO (151529), BARRETT J. ANDERSON (318539),
CRAIG E. TENBROECK (287848), SOPHIA M. RIOS (305801), JAYME
B. STATEN (317034) Attorneys for Plaintiff and
Counter-Defendant ChromaDex, Inc.
Hon.
Cormac J. Carney, Judge:
SECOND AMENDED PROTECTIVE ORDER
HON.
DOUGLAS F. MCCORMICK, UNITED STATES MAGISTRATE JUDGE
RECITALS
AND GOOD CAUSE STATEMENT
I.
Plaintiff and Counter-Defendant ChromaDex, Inc.
(“ChromaDex”), Defendant and Counterclaimant
Elysium Health, Inc. (“Elysium”), and Defendant
Mark Morris (each individually, a “Party” and
collectively, the “Parties”) contemplate that
discovery in the above-captioned action (hereinafter referred
to as “the Action”) may involve the production of
documents and other information for which special protection
from public disclosure and from use for any purpose other
than prosecution of this action is warranted.
II.
The Parties acknowledge that this stipulation (and if
approved, Order) seeks to protect the confidentiality of
materials exchanged throughout the Action between the Parties
or by third parties that may contain trade secret or other
confidential research, technical, cost, price, marketing, or
commercial information, or other information that may be
protected from public disclosure by a person's right to
privacy.
III.
The Parties acknowledge that this stipulation (and if
approved, Order) does not confer blanket protections on all
disclosures or responses to discovery and that the protection
it affords only extends to the limited information or items
that are entitled, under the applicable legal principles, to
confidential treatment.
IV.
The Parties further acknowledge that this stipulation (and if
approved, Order), does not create entitlement to file
confidential information under seal.
V.
In light of these acknowledgements, and to protect against
injury caused by dissemination of confidential documents and
information, good cause exists to enter a protective order in
this matter.
Stipulation
1.
Scope. The following terms, conditions, procedures,
and restrictions (collectively, “Protective
Order”) govern the use and handling of: (a) all
documents, electronic data, and any other form of information
produced or voluntarily exchanged in the Action by any Party
or non-parties, including any “Writings” (as that
term is defined in Rule 1001 of the Federal Rules of
Evidence); (b) all discovery contemplated by Rules 26-36 of
Federal Rules of Civil Procedure, including responses to all
written discovery requests and demands, deposition testimony
and exhibits, however recorded; and (c) any other written,
recorded, or graphic matters (collectively,
“Material”).
2.
Designated Material. Material designated as
“CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL -
ATTORNEY'S EYES ONLY, ” or “OUTSIDE COUNSEL
ONLY”[1] pursuant to the terms of this Protective
Order (“Designated Material”) shall include,
without limitation: (a) all copies, extracts, and complete or
partial summaries prepared from Designated Material; (b)
portions of deposition transcripts and exhibits thereto that
contain, summarize, or reflect the content of any Designated
Material; and (c) portions of briefs, memoranda, or any other
writings filed with the Court and exhibits thereto that
contain, summarize, or reflect the content of any Designated
Material; and (d) deposition testimony designated in
accordance with this Protective Order.
3.
Designations. It shall be the duty of the Party or
non-party subpoenaed in this action (“Producing
Party”) to give notice that Material that it produces
in disclosures or in responses to discovery is Designated
Material.
4.
Obligations: The duty of the Party or Parties
receiving the Designated Material (“Receiving
Party”) and of all other persons bound by this
Protective Order to maintain the confidentiality of
Designated Material so designated shall commence with receipt
of the Designated Material. Designated Material shall be
designated by the Designating Party, subject to the
provisions of this Protective Order, with one of the
following designations:
a. “CONFIDENTIAL”; or
b. “HIGHLY CONFIDENTIAL -
ATTORNEY'S EYES ONLY” Consistent with this
Protective Order, the attorneys of record shall exercise all
reasonable care to control duplication of, access to, and
distribution of copies of Designated Material; or
c. “OUTSIDE COUNSEL ONLY, ” a
designation requested by and available only for documents or
information produced by non-parties subpoenaed in this
action.
5.
CONFIDENTIAL Designation: A Designating Party may
designate Material as “CONFIDENTIAL” if it
reasonably believes such material constitutes, discloses, or
relates to processes, operations, research, technical or
developmental information, production, marketing, sales,
financial, or other proprietary data, confidential or
sensitive personal information, or non-public information of
commercial value.
6.
HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY
Designation: A Designating Party may designate
Material as “HIGHLY CONFIDENTIAL - ATTORNEY'S EYES
ONLY” if it reasonably believes such material
constitutes or contains, in whole or in part, information
which (a) the Designating Party reasonably believes will harm
its competitive position if the information becomes known to
a Party other than the Designating Party; (b) relates to
future product or service offerings; or (c) includes or
incorporates sensitive financial or commercial information,
including, but not limited to, sales and revenue information,
or the identification of actual or potential customers or
retail partners, the disclosure of which the Designating
Party believes will cause harm if it becomes known to a Party
other than the Designating Party.
7.
OUTSIDE COUNSEL ONLY Designation: A non-party
subpoenaed in this action may designate documents it produces
in this litigation as “OUTSIDE COUNSEL ONLY” if
it reasonably believes that the documents contain
competitively sensitive information, including but not
limited to information concerning sales or profits, that
cannot be shared with any directors, officers, employees, or
advisory board members of any Party.
8.
Good-Faith Designations: Each Party agrees that
designation of Material as either “Confidential”
or “Highly Confidential - Attorney's Eyes
Only” and responses to requests to permit further
disclosure of Designated Material shall be made in good faith
and not (a) to impose burden or delay on an opposing Party,
or (b) for tactical or other advantage in litigation.
9.
Designating Written Materials: Each page of any
Designated Material must be labeled with the legend
“CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL -
ATTORNEY'S EYES ONLY, ” or “OUTSIDE COUNSEL
ONLY” as appropriate, at the time the Material, or a
copy thereof, is provided to the Receiving Party. In the case
of Material contained in or on media other than paper
(e.g., natively produced documents), the Designating
Party shall affix such a label to the production media,
appropriately title the file name, or otherwise use its best
efforts to identify the contents or information as Designated
Material. Additionally, a Party may give notice to all other
Parties in the Action, in writing, that material produced by
another Party or third party is Designated Material covered
by this Protective Order.
10.
Inadvertent Failure to Designate: The failure by a
Designating Party to designate specific Materials as either
“CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL -
ATTORNEY'S EYES ONLY, ” or “OUTSIDE COUNSEL
ONLY” shall not, by itself, be deemed a waiver in whole
or in part of a claim of confidentiality as to such
Materials. Upon written notice to the Receiving Party of such
failure to designate, or of incorrect designation, the
Receiving Party shall cooperate to retrieve disseminated
copies, and restore the confidentiality of the information
that was inadvertently disclosed beyond those persons
authorized to review such information pursuant to Paragraphs
14-16 and shall thereafter take reasonable steps to ensure
that the Designated Material is treated in accordance with
the correct designation. No. person or Party shall incur any
liability hereunder with respect to any good faith, otherwise
permissible disclosure that occurred prior to the receipt of
written notice of the mistaken designation.
11.
Designating Deposition Testimony: Counsel for the
Designating Party may identify a deposition transcript in
whole or in part, and/or deposition exhibits as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -
ATTORNEY'S EYES ONLY” either by (a) so stating on
the record during the deposition, or (b) providing written
notice to counsel for the Receiving Party within twenty-one
(21) calendar days from the day the Designating Party
received the final deposition transcript from the court
reporter.[2] Deposition exhibits previously designated
as containing Designated Material do not need to be
re-designated to retain their protection under this
Protective Order.
a.
At any deposition session, when counsel for a Designating
Party deems that the answer to a question will result in the
disclosure of Designated Material, counsel shall have the
option, in lieu of or in addition to taking other steps
available under the Federal Rules of Civil Procedure, to
direct that the testimony shall be treated in accordance with
a designation under Paragraph 4 of this Protective Order.
Counsel for the Designating Party whose Material is involved
may also request that all persons other than the witness and
individuals who may have access to such Designated Material
under the appropriate designation in Paragraph 4 of this
Protective Order, leave the deposition room during the
confidential portion of the deposition.
b.
Deposition transcripts containing Designated Material shall
be prominently marked on the front page with a statement that
provides “THIS DEPOSITION TRANSCRIPT CONTAINS
[insert appropriate designation under Paragraph 4 of this
Protective Order] THAT IS SUBJECT TO A PROTECTIVE
ORDER.” Deponents may review their own transcript in
its entirety, including any portions of the transcript
designated pursuant to Paragraph 4 of this Protective Order,
to ensure that it is accurate and complete. In all other
instances, only those individuals authorized under Paragraphs
14-16 will be provided with access to any portions of
deposition transcripts or exhibits designated pursuant to
Paragraph 4 of this Protective Order Notwithstanding the
foregoing, no deponent (other than individuals who may ...