Opinion
2:20-cv-02609-CJC-(PLAx)
01-11-2021
LINDA COTTER, an individual, and GEOFFREY COTTER, an individual, Plaintiffs, v. MEDTRONIC USA, INC., and ERIC RUDNER, Defendants.
Ginger Pigott (SBN CA 162908) Richard Tabura (SBN CA 298677) GREENBERG TRAURIG, LLP Defendant MEDTRONIC USA, INC.
Ginger Pigott (SBN CA 162908) Richard Tabura (SBN CA 298677) GREENBERG TRAURIG, LLP Defendant MEDTRONIC USA, INC.
STIPULATION AND PROPOSED PROTECTIVE ORDER
Paul L. Abrams, Magistrate Judge
I. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary or private information for which special protection from public disclosure and from use for any purpose other than pursuing this litigation may be warranted. Accordingly, the parties hereby stipulate and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles.
II. GOOD CAUSE STATEMENT
This action will involve the exchange of information that reflects trade secrets, 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 this action is warranted. Such confidential and proprietary materials and information consist of, among other things, confidential research, development, or commercial information (including information implicating privacy rights of third parties) regarding the medical devices at issue in this lawsuit, 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. 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 and in the conduct of 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 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.
III. “CONFIDENTIAL” MATERIALS
1. The term “trade secret” shall be defined as is set forth in California Civil Code § 3426.1. Any such original materials produced or documents derived from such materials after production, including but not limited to the originals as well as any copies, summaries, transcriptions, or other reproductions of such materials (hereinafter “The Materials”) shall be stamped “CONFIDENTIAL” and shall be subject to the provisions of this Stipulation and Protective Order. If it comes to a party's attention that The Materials it designated for protection do not qualify for protection at all, the party must promptly notify all other parties that it is withdrawing the mistaken designation.
Cal. Civil Code § 3426.1 provides that trade secret “means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. ---------
2. Any nonparty from whom discovery may be sought may also designate information as “CONFIDENTIAL” pursuant to this Protective Order.
3. Counsel for a party to this action may challenge the “CONFIDENTIAL” designation made by the producing party of any of The Materials by notifying the producing party in writing of the challenge, which notice must provide a list of each document challenged (by Bates number) and the reason for the challenge. The parties shall meet and confer pursuant to Civil Local Rule 37.1 to attempt to informally resolve any disagreement regarding the “CONFIDENTIAL” designation of any of The Materials. If the parties are unable to come to an informal resolution regarding challenged “CONFIDENTIAL” designations, the challenging party shall set a hearing for the purpose of determining whether the disputed documents are entitled to protection. The party seeking protection shall bear the burden of proof of establishing that the subject documents are protected documents. If the designation is challenged, The Materials will remain CONFIDENTIAL until such time as the Court rules. Any challenge must be made at a time consistent with the District Judge's scheduling order, and must fully comply with Local Rule 37.
4. The Materials designated “CONFIDENTIAL” shall be used for purposes of this action only and for no other action or purpose whatsoever and shall not, without leave of this Court, be disclosed to any person or entity other than:
a. this Court (under seal or in camera),
b. any Mediator, Master, or Referee involved with this action (who shall be informed of and agree to be bound by this Protective Order prior to receipt of The Materials),
c. the parties to this action and their counsel (each of whom shall have executed a copy of this Stipulation and Protective Order prior to their receipt of The Materials),
d. experts, consultants, and copy services (each of whom shall have executed Exhibit A as set forth in Paragraph 5),
e. court reporters, including stenographers and video technicians (who shall agree to be bound by the terms of the Protective Order),
f. deponents who have agreed to be bound by the terms of the Protective Order as set forth in Paragraph 6.
5. The disclosure by counsel or co-counsel for a party to this action of The Materials to experts or other consultants or copy services retained by the disclosing counsel shall not constitute a violation of, or a waiver of the protections afforded by, this Stipulation and Protective Order so long as the person to whom disclosure is made and has executed a Declaration in the form attached hereto as Exhibit A. A copy of each executed Declaration in the form attached hereto as Exhibit A shall be maintained by counsel for the party seeking disclosure to such a person. Paralegals and clerical staff employed by the disclosing counsel's office shall not be required to execute a Declaration.
6. In the event The Materials themselves, or the contents of The Materials designated “CONFIDENTIAL” are to be identified, discussed, or disclosed during a deposition taken in this action of any person or entity other than those persons or entities described in paragraphs 4 and 5 above, the deponent shall be required to acknowledge on the record, before any identification, discussion or disclosure of The Materials occurs that he or she has been advised of and has agreed to be bound by the terms of this Stipulation and Protective Order.
7. After taking depositions where The Materials designated “CONFIDENTIAL” or the contents thereof are identified, discussed, or disclosed, all portions of any resulting deposition transcript shall be subject to the terms of this Stipulation and Protective Order for fifteen (15) business days after all parties have received the transcript. Within fifteen (15) business days after receipt of the transcript, any party may designate portions of the transcript as “CONFIDENTIAL.” Such designation shall be in writing, circulated to all other parties and shall identify the lines and pages that will be designated “CONFIDENTIAL.” After fifteen (15) business days have passed from all parties' receipt of the transcript, only those portions of the transcript designated “CONFIDENTIAL” will be subject to the terms of this Stipulation and Protective Order.
8. In the event that counsel for a party wishes to file or otherwise disclose The Materials or the contents of The Materials designated “CONFIDENTIAL” during the course of pre-trial proceedings, he or she shall comply with Civil Local Rule 79-5. Good cause must be shown in the application to file under seal.
9. This Stipulation and Protective Order shall not apply to the disclosure of The Materials or the contents of The Materials at the time of trial. Those issues may be taken up as a separate matter upon the motion of any of the parties at the threshold of the trial.
10. Counsel for a party shall not, in the presence of the jury, comment on the reasons or motivation for designating The Materials as “CONFIDENTIAL” without first having obtained permission of the Court to do so.
IV. PRIVILEGED MATERIALS
11. This provision is being entered into to govern the inadvertent disclosure of privileged or protected documents or materials (hereinafter the “Privileged Materials”).
12. The inadvertent production or disclosure of any Privileged Materials protected by the attorney-client privilege, the attorney work-product doctrine, a joint defense privilege or any other applicable privilege, immunity or protective doctrine (collectively a “Privilege”) shall not constitute, or be considered as a factor suggesting, a waiver or impairment of any claims of such Privilege. In the event of inadvertent production or disclosure, the producing party may provide written notice that Privileged Materials have been inadvertently produced or disclosed. Within seven (7) days of receipt of such notice, any person that has received such Privileged Materials shall return to the producing party all such Privileged Materials and any copies thereof in its possession and shall make reasonable efforts to reclaim and return all such Privileged Materials.
13. Any party receiving materials that, on their face, appear to be covered by a Privilege, shall provide prompt notice of the disclosure to the producing party to afford the producing party the opportunity to designate the materials as inadvertently produced Privileged Materials subject to the claw-back provision in Paragraph 12.
14. Nothing herein shall prevent any party from seeking further or greater protection from the Court with respect to the treatment of Privileged Materials in connection with this action, and nothing herein shall be construed to affect the evidentiary admissibility of any documents, testimony, information or other materials.
V. MISC. PROVISIONS
15. Nothing in this Stipulation and Protective Order shall be construed to preclude the producing party from seeking additional protection for The Materials or the contents of The Materials designated as “CONFIDENTIAL.”
16. Notwithstanding the date upon which the Court entered this Stipulation and Protective Order, this Stipulation and Protective Order shall become effective and binding upon each of the parties to this action, and each of their undersigned counsel, on the date each party and each counsel execute same.
17. Nothing in this Stipulation and Protective Order shall be construed to prevent this Court from disclosing any facts relied upon by it in making or rendering any finding, ruling, order, judgment or decree of whatever description.
18. This Stipulation and Protective Order shall be binding throughout and after final adjudication of this action, including but not limited to, final adjudication of any appeals and petitions for extraordinary writs.
19. At the conclusion of this matter and after all final appeals have been taken, counsel for the parties agree to provide the producing party of The Materials with an Affidavit in the Form attached hereto as Exhibit B.
20. This Stipulation and Protective Order may be executed in one or more counterparts in which case all executed counterparts and each of them shall be deemed to be one and the same instrument.
21. Nothing in this Stipulation and Protective Order shall be construed to affect the evidentiary admissibility of any information labeled as “CONFIDENTIAL” or limit the use of any such information at trial (subject to rulings on admissibility).
22. This Stipulation and Protective Order does not give a party any greater or additional rights to object to discovery other than it would have had without this Stipulation and Protective Order.
23. The parties agree to work together to obtain timely Court approval of this Stipulated Protective Order. However, once the Stipulated Protective Order is signed by the parties, the parties agree to be bound by it and respond and conduct discovery according to it, even if the Court has not yet signed it. Waiting for the Court to sign the Stipulated Protective Order shall not be used by any party as a reason to delay providing discovery responses and materials once the parties have signed this Stipulated Protective Order.
24. Each of the parties to this action and each of their undersigned counsel acknowledge that they have executed this Stipulation and Protective Order voluntarily and that the terms and provisions of this Stipulation and Protective Order have been read and understood by them.
ATTESTATION
I, Richard Tabura, am the CM/ECF user whose ID and password are being used to file this Stipulation and Proposed Protective Order. Pursuant to Local Civil Rule 5-4.3.4(a)(2)(i), I hereby attest that Thomas Alch, counsel for Plaintiff, on whose behalf this filing is jointly submitted, has concurred in this filing's content and has authorized the filing.
By Richard Tabura Richard Tabura
EXHIBIT A
DECLARATION OF
1. My name is __. I am over the age of 18 years and am a resident of __ County, __. I make this Declaration based upon my personal knowledge, and I am competent to testify to the matters stated herein.
2. I am aware that a Protective Order has been entered in Linda Cotter, et al. vs. Medtronic USA, Inc., et al., in the United States District Court for the Central District of California, No. 2:20-cv-02609-CJC- (PLAx).
3. A copy of that Protective Order has been shown to me, and I have read and understand its contents.
4. By signing this Declaration, I promise that I will use the materials and contents of the materials designated “CONFIDENTIAL” pursuant to the above-described Protective Order for the purpose of assisting counsel for a party to the above-described civil action in the adjudication of that action and for no other purpose.
5. By signing this Declaration, I also promise that I will not communicate, disclose, discuss, identify, or otherwise use materials or the contents of materials designated “CONFIDENTIAL” pursuant to the above-described Protective Order with, to, or for any person or entity other than the Court, a party to the above-described civil action, counsel for a party to the above-described civil action, including other counsel, paralegals, and clerical staff employed in his or her office, persons permitted by the above-described Protective Order to attend depositions taken in the above-described civil action, and persons or entities assisting such counsel who have executed an affidavit in the same form as this Declaration.
6. By signing this Declaration, I also promise that I will not copy, transcribe, or otherwise reproduce, or cause to be copied, transcribed, or otherwise reproduced, by any means whatsoever, any materials or the contents of any materials designated “CONFIDENTIAL” pursuant to the above-described Protective Order except to the extent to which I am directed to do so by counsel for a party to the above-described civil action, in which case all such copies, transcriptions, or reproductions shall be made solely for my own use in connection with my work in the above matter. I further promise at the conclusion of this case to deliver upon request all materials (originals and copies) designated “CONFIDENTIAL” to the counsel who originally directed that said materials be provided to me.
7. I understand that, by signing this agreement, I am agreeing to subject myself to the jurisdiction of this Court.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this __ day of __, 20 __, at __.
EXHIBIT B
DECLARATION OF
1. My name is __ . I am over the age of 18 years and am a resident of __ County, __. I make this Declaration based upon my personal knowledge, and I am competent to testify to the matters stated herein.
2. I have requested and received from __ all of the materials, transcripts, and other things designated as Confidential as described in the Protective Order which was entered by the Court in Linda Cotter, et al. vs. Medtronic USA, Inc., et al., in the United States District Court for the Central District of California, No. 2:20-cv-02609-CJC- (PLAx).
3. With the exception of court filings, I have either destroyed or have attached hereto all of the materials, transcripts, and other things designated as Confidential, including those materials which were returned to me by __ in accordance with the preceding paragraph, described in the Protective Order which was entered by the Court in Linda Cotter, et al. vs. Medtronic USA, Inc., et al., in the United States District Court for the Central District of California, No. 2:20-cv-02609-CJC- (PLAx).
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this __ day of__, 20 __, at __.