Opinion
Case No.: 2:03CV00514 DB.
June 10, 2004
Bryon J. Benevento Snell Wilmer L.L.P. Salt Lake City, UT.
Perry J. Viscounty (132143), Pro Hac Vice Mark A. Finkelstein (173851), Pro Hac Vice Latham Watkins LLP, Costa Mesa, CA, Attorneys for Defendant and Counterclaimant Allergan, Inc.
PROTECTIVE ORDER GOVERNING THE PROTECTION AND EXCHANGE OF CONFIDENTIAL INFORMATION
IT IS HEREBY STIPULATED between plaintiff Klein-Becker usa, LLC ("Klein-Becker") and defendant Allergan, Inc. ("Allergan") (together, "the parties") that the following procedures shall govern the handling, examination, review, and use of documents, testimony, and other discovery materials disclosed by the parties and party witnesses, including expert witnesses, during the course of pre-trial, trial, and post-trial proceedings in this action. These procedures shall survive the termination of this action.
Procedures Pertaining to Protected Material Disclosed During the Action
1. Disclosure of information designated as Confidential Information (as defined herein) shall be solely for the purposes of preparation and trial of this action, including any appeal or retrial. Information disclosed shall not be used for any other purpose, and the parties expressly agree that Confidential Information shall not be used for advertising, business, or other competitive purposes. The persons receiving the information in question are ENJOINED from disclosing it to any other person except in conformance with this Order.
Definitions of Confidential Information
2. The parties agree that discovery in this action may involve certain confidential information. A document or information may be designated as "Confidential" if the designating party believes in good faith that such document or information contains or reflects a trade secret or other proprietary, financial, or commercially sensitive information, including but not limited to a trade secret or other proprietary, financial, or commercially sensitive information which, if disclosed to the public, to a competitor, or to the opposing party, could be misappropriated for its economic value or used to obtain unfair advantage over the designating party ("Confidential Information").
3. Material or information derived from, and testimony based upon, review of Confidential Information are also considered Confidential Information. All testimony, other than testimony in Court, that refers to Confidential Information and all deposition or other exhibits that consist of or contain Confidential Information shall automatically be deemed designated as Confidential to the same extent as the documents or information giving rise to the designation. A party who discloses and designates information as Confidential Information ("designating party") can use its Confidential Information for any purpose, without restriction.
4. The parties agree that the following is not Confidential Information regardless of when produced: (a) documents or information already in the possession of the receiving party before its production in this action, unless obtained in confidence and/or pursuant to a prior confidentiality or protective order; (b) documents or information filed with local, state, or federal agencies and considered public records under the laws of the particular jurisdiction; and (c) documents otherwise disclosed to the public.
5. Designation of documents or other specified information as Confidential by counsel, or receipt of documents or information so designated, shall not be considered as determinative of whether the contents of the documents or the information specified are entitled to be deemed as such.
6. A party shall not be obligated to challenge a designation of Confidential Information at the time the designation is made, and failure to do so shall not preclude a subsequent challenge thereto. If any party to the action disagrees at any stage of the proceedings with such a designation, that party shall provide to the designating party written notice of its disagreement. The parties shall first try to dispose of the dispute in good faith on an informal basis. If the dispute cannot be resolved, the party challenging the designation may request appropriate relief from the Court. The burden of proving that the information has been properly designated as Confidential is on the party making the designation.
Designation of Confidential Information
7. Any documents, interrogatory answers, responses to requests for admission, affidavits, pleading, or portions thereof (collectively, "Documents") or any deposition transcripts or portions thereof ("Testimony") containing Confidential Information may be so designated by stamping the word "CONFIDENTIAL" on each page containing Confidential Information or, in the case of interrogatory answers, by identifying each interrogatory answer containing Confidential Information. Such designation or identification, and the protection afforded by the terms of this Order, shall apply to the original, any copies, and any excerpts or summaries thereof containing any such Confidential Information.
8. A party who produces Documents shall make its confidentiality designation(s), if any, at the time such Documents are served. When Documents are served by a nonparty, including without limitation documents produced pursuant to subpoena, any party may make its confidentiality designation(s), if any, within thirty (30) days after service of such Documents. Confidentiality designations made after service of such Documents must be made in writing. All other discovery materials and pleadings (with the exception of deposition transcripts, which are governed by the next paragraph hereof) must be designated Confidential prior to service thereof by stamping the word "CONFIDENTIAL" on each page containing Confidential Information. All Documents shall be maintained in confidence by the receiving party or parties until expiration of the above-described time limits for designation.
9. The parties agree to use their best efforts to designate Testimony that contains Confidential Information as Confidential during the deposition. Any counsel present at the deposition may so designate Testimony as Confidential Information. When so instructed, the reporter shall commence a new section of the transcript, with the title page and each page containing Confidential Information bearing the legend, "CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER" and shall bind those sections of Testimony separately from non-confidential portions of the transcript. For the duration of such Testimony, all parties and other individuals not entitled by the terms of this Order to receive Confidential Information shall step out of the room and shall not return to the room until counsel lifts from the Testimony the designation of Confidential. Counsel will cooperate to minimize the necessity for such designations and to examine in all areas pertaining to Confidential Information during the same portion of the deposition. Notwithstanding the foregoing, any party may in writing, within twenty days of receipt of a deposition transcript, designate as Confidential any additional Testimony containing Confidential Information.
Persons Authorized to Receive Confidential Information
10. A party who receives Confidential Information ("receiving party") shall not, without the prior written consent of the designating party or the prior order of the Court after notice to the designating party's counsel, disclose that Confidential Information to any person, other than the following:
a. William N. Scarff, Allergan's Chief Litigation Counsel;
b. Outside attorneys for the receiving party, and employees of such outside attorneys, solely for use in connection with this action. Outside counsel shall limit disclosure of confidential information to the attorneys, paralegals, and employees actually working on this case by restricting access to electronic databases and by restricting access to hard-copies of confidential documents to such attorneys, paralegals, and employees.
c. Persons engaged by the receiving party's attorneys to assist counsel in this action, including expert witnesses, consultants, or investigators, whether paid or not, on a need-to-know basis only, provided they have complied with paragraph 11 herein. Counsel for the receiving party shall provide written notification to counsel for the designating party of the name and curriculum vitae of each such person at least ten business days before any Confidential Information is disclosed to him or her. If the designating party has a valid ground for objection to disclosure of Confidential Information to the identified person, counsel for the designating party will file an objection with the Court stating the grounds therefor within ten business days after receipt of the disclosure information discussed above. If an objection is filed, the receiving party may not disclose the Confidential Information to the identified person until the Court rules on the designating party's objection. If no written objection is made within ten business days, the receiving party may disclose the Confidential Information to the identified person. No discovery shall be propounded to or concerning persons identified in this manner other than the ordinary expert discovery for which the Federal Rules of Civil Procedure provide.
d. Expert witnesses who testify at depositions or trial herein, if reasonably necessary in the preparation for or questioning of the witness at deposition or trial, provided they have complied with paragraph 11 herein;
e. The Court and Court personnel;
f. Stenographic reporters and any other persons who prepare deposition transcripts wherein Confidential Information has been disclosed; and
g. Any other persons to whom the designating party consents in writing, provided they have complied with paragraph 11 herein.
11. All persons (except for the Court, Court personnel, William N. Scarff, and the parties' attorneys and authorized employees) given access to Confidential Information shall be advised, in advance, that the material is being disclosed subject to the terms of this Order and shall execute an Undertaking Concerning Confidentiality Of Documents Covered By The Protective Order on the form attached hereto as Exhibit A, agreeing to be bound by the terms hereof. No person gaining access to, receiving, or reviewing Confidential Information shall disclose it to any person other than those persons described in Paragraph 10. In no event shall any person make use of Confidential Information other than for the purposes permitted in this Order.
Use of Confidential Information
12. Except as otherwise agreed upon by counsel, counsel shall maintain physical custody or control over all Confidential Information produced or released to it and shall be responsible for ensuring that such Confidential Information does not leave its custody and is not disclosed, except as otherwise provided or permitted by the terms of this Order.
13. Subject to the Federal Rules of Civil Procedure, Confidential Information may be offered in evidence at trial or at any hearing in open Court provided that the proponent of the evidence first gives reasonable notice to counsel for the designating party. The designating party may move the Court for an order that the evidence be received under conditions to prevent its disclosure to persons not entitled under this Order to review it. The Court shall then determine whether the proffered evidence should continue to be treated as Confidential and, if so, what protection, if any, should be afforded to such evidence at the trial or hearing. Nothing in this Order shall operate as an admission by any party that any information is or is not admissible in evidence in this action.
14. With respect to subpoenas or other discovery requests seeking Confidential Information:
a. If any party or person that has obtained Confidential Information under the terms of this Order receives a subpoena or other discovery request commanding the production of any such documents or information, such party or person shall immediately object to the production, refuse to produce the documents, and notify the designating party of the service of the subpoena or request.
b. If the designating party objects to the production of the Confidential Information, the party or person receiving the subpoena or request shall provide reasonable cooperation with any motion to quash, motion for a protective order, or other such motion the designating party may bring objecting to the production of the Confidential Information pursuant to the Federal Rules of Civil Procedure or any similar federal or state rule, whereupon the designating party shall bear the burden of defending such motion and any subsequent motion to enforce the subpoena or request.
c. Unless the designating party consents in writing, the party or person receiving the subpoena or request shall not produce any Confidential Information in response to the subpoena or request pending a ruling on the request for relief unless expressly required to produce such Confidential Information pursuant to court order.
15. No document containing Confidential Information shall be filed with the Court unless it is in a sealed, opaque container or envelope including on the outside thereof the case heading of this litigation and a notification that the contents are subject to a protective order and that the container is not to be opened except on further order of the Court or by stipulation of counsel for all parties. The clerk of the Court is directed to maintain under seal all documents and transcripts of deposition testimony designated as confidential that is so filed in this litigation.
16. It is not the intent of the parties, nor of the Court, that an attorney or law firm that acquires knowledge of (or is given access to) Confidential Information pursuant to this Order should thereby be disqualified from other representations adverse to the designating party solely because of such knowledge (or access).
17. This Order shall not prejudice the rights of or prevent the parties from objecting to the production of any Document or information, objecting to the offer of any Document or information into evidence, or seeking additional protection from the Court concerning any material or information requested to be disclosed during discovery in this matter.
18. Nothing in this Order shall be interpreted to compel disclosure of Documents or information protected by the attorney-client privilege, the attorney work product doctrine, or any other applicable privileges or doctrines.
19. The inadvertent or unintentional disclosure by the producing party of Confidential Information either by way of document production or deposition testimony, regardless of whether the information was designed Confidential at the time of disclosure, shall not be deemed a waiver in whole or in part of a party's claim of confidentiality, either as to the specific information disclosed or as to any other information relating thereto or on the same or related subject matter. Any inadvertently or unintentionally disclosed Confidential Information not designated as such pursuant to this Order at the time of its disclosure shall be designated as Confidential as soon as reasonably possible after the producing party becomes aware of the erroneous disclosure and shall thereafter be treated as Confidential Information. No party shall be responsible to any other party for any use made of information produced and not designated as Confidential Information until such designation is made in writing.
20. Materials identified as Confidential Information shall be disposed after final termination according to the following terms:
a. Except as set forth below, within 60 days of final termination of this action, the attorneys of record for each receiving party shall return to each designating party or its attorneys of record, at the expense of the designating party, all documents (and copies thereof) and all materials (and copies thereof) that have been furnished to it by the designating party and that have been identified as Confidential Information pursuant to this Order. At the option of the designating party, such documents received by the receiving party may be destroyed in lieu of being returned to the designating party.
b. Notwithstanding subparagraph (a), the attorneys of record for a party may retain indefinitely, in "secure storage" (defined below), a reasonable number of archival copies of Confidential Information. Such Confidential Information may not be used or disclosed except (i) as permitted by this Order, (ii) by agreement of the designating party in question, or (iii) by further order of this Court. The archival copies may be in hard-copy, electronic, magnetic, optical-disk or other form, or any combination thereof. By way of example and not of limitation, outside counsel may maintain a set of production documents; a set of pleadings, briefs, and similar court papers; a set of trial exhibits; a copy of the record on appeal; a reasonable number of backup tapes containing confidential information in electronic form that had been maintained on law firm computer networks ( i.e., counsel need not specifically purge their firms' routine backup tapes of confidential information as long as the backup tapes are kept in secure storage); and the like.
c. For purposes of subparagraph (b), "secure storage" for archival copies of Confidential Information does not include storage that is routinely physically accessible from the Internet.
21. Upon final disposition of this action (whether by judgment, settlement, or otherwise), all Documents, Testimony, and other materials that contain Confidential Information and that have been marked for identification and/or introduced into evidence in this action may be withdrawn from the Court and returned to the respective parties who marked and/or introduced the material.
22. The provisions of this Order shall survive and remain in full force and effect, and the Court shall retain jurisdiction for purposes of enforcement of this Order, after the final disposition of this action.
23. The entry of this Order is without prejudice to the right of any party to apply to the Court for a modification of or other relief from this Order.
24. Nothing contained in this Order, or any designation of Confidential Information made pursuant hereto, shall be used by any party as an admission by a party's opponent.
25. In the event that a party seeks discovery from a nonparty to this action, the nonparty may invoke the terms of this Order in writing to all parties to the action with respect to any Confidential Information to be provided to the requesting party by the nonparty.
26. The parties hereto undertake and agree that they will comply in all respects with, and be bound in all respects by, the provisions of this Order until it is entered by the Court and thereafter, including without limitation any production of documents or other information made on or before entry of this Order by the Court. The parties agree and acknowledge that any person or party who gains access to Confidential Information pursuant to this Order and who is found by the Court, after an evidentiary hearing, to have violated the terms of this Order by disclosing or revealing Confidential Information in violation of this Order, shall be presumptively deemed to be in contempt of this Order, and treated as such by the Court,
27. The parties, or any representatives, agents, independent contractors, or experts of the parties, who learn of a violation of the terms of this Order have an obligation to report the violation to the designating party's counsel of record immediately upon learning of the violation of the Order. At the same time, any party learning of a violation of the Order is obligated to take all reasonable steps to retrieve the materials inadvertently disclosed and otherwise to limit any damage caused by the disclosure and violation of the Order. The parties agree that all reasonable costs, including without limitation reasonable legal fees, investigative costs, or other expenses incurred in addressing a violation of this Order, shall be reimbursed to the non-violating party by the party found by the Court, after an evidentiary hearing, to have violated the terms of this Order, upon application to and order from the Court and without awaiting the final outcome of the litigation.
28. Klein-Becker is hereby ordered to produce, within 10 days of execution of this order by the Court, all documents and information responsive to discovery requests previously propounded by Allergan, to the extent such documents and information have been withheld subject to entry of a protective order. Allergan is hereby ordered to produce, within 30 days after production by Klein-Becker in accordance with the previous sentence, all documents and information responsive to discovery requests previously propounded by Klein-Becker, to the extent such documents and information have been withheld subject to entry of a protective order.
For good cause shown, IT IS SO ORDERED.