ChromaDex, Inc. v. Elysium Health, Inc.

          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 ...