STIPULATION AND AGREED PROTECTIVE ORDER
NOTE CHANGES MADE BY THE COURT
DALE S. FISCHER, District Judge.
STIPULATION AND AGREED PROTECTIVE ORDER
Upon agreement of the parties, by and through their counsel of record, in order to expedite the flow of discovery materials in this action, and to protect trade secrets or other confidential research, development and commercial information, HEREBY STIPULATE as follows:
1. At such time as Defendants Cook Medical, LLC ("CML" and f/k/a "Cook Medical Incorporated" ) and Cook Incorporated ("CI") (sometimes collectively "Cook Defendants") produce to counsel for any party hereto any documents or data compilations that in any way contain any information constituting a trade secret or confidential or proprietary business information and otherwise qualifying to be subject to a protective order that the information not be revealed or be revealed only in a specified way in accordance with Fed. R. Civ. Pro. 26(c)(1)(G) and applicable precedent ("Confidential Documents"), Cook Defendants may stamp, mark, or designate those documents and/or things "Confidential: Subject to Protective Order"; "Company Confidential." Additionally, at any time during any deposition taken in this matter, counsel for Cook Defendants may note on the record that the portion of the testimony relating to the confidential document is "Confidential," reflecting that the use and distribution of the testimony or deposition transcript, including the exhibits, are subject to this Agreed Protective Order ("Order") and shall be treated as a Confidential Document. The parties must not simply stamp an entire document as "confidential" but must take care to designate only those portions of documents that are confidential as such, by stamping each Case 2:15-cv-05257-DSF-JPR Document 32-1 Filed 06/22/16 Page 3 of 13 Page ID #:249 page containing confidential material "confidential." If a party wants to challenge the designation of a document as `Confidential', the challenging party shall first notify the producing party in order to allow the parties to meet and confer to resolve any issues relating to the designation. If after ten (10) business days from the date of the notification the parties are unable to resolve their differences, the challenging party may bring the matter before the Court for a ruling on whether the document deserves `Confidential' status by filing a "Notice of Challenge of Confidential Designation." The producing party shall then file a motion with the Court within ten (10) days justifying why the document(s) should be protected from public disclosure. The challenging party shall then have ten (10) days with which to file a response. Any such motions must be filed in accordance with Local Rule 37-1 and 37-2, including the joint stipulation provision. During this time the document shall continue to be treated as Confidential until such a time that the Court rules otherwise.
2. The parties to this action agree that all such designated documents, information, testimony and/or things, and the information contained therein, shall be treated as Confidential in accordance with the terms of this Order.
3. Except with the prior written consent of counsel for Cook Defendants, Confidential Documents may be shown or disclosed only to the following persons (hereinafter referred to as a "Qualified Person"):
a. The parties to this action and/or employees or agents of Cook Defendants;
b. Counsel for the respective parties to this action;
c. Employees of such counsel assigned to assist such counsel in the preparation of this action, including administrative staff and technical support;
d. Independent experts and consultants retained by a party whose assistance is deemed necessary by such party's counsel for the prosecution of this action, and employees of such experts and consultants necessary to assist such persons in performing their duties;
e. Any and all court reporters, staff, and/or videographers utilized in depositions conducted in this case;
f. This Court and its administrative personnel or any Court asked to enforce this Order;
g. A non-party witness who agrees to be bound by this Order pursuant to paragraph 4; and
h. Any person who is not a competitor of Cook Defendants or who does not have a connection from a business perspective with a competitor of Cook Defendants, including as an employee or consultant, can be considered a Qualified Person.
4. With the exception of the Court, all Qualified Persons shall be bound by this Order if they agree to be bound. Once a Qualified Person agrees, he or she will be provided a copy of the Order and must agree to be bound by it by signing the Case 2:15-cv-05257-DSF-JPR Document 32-1 Filed 06/22/16 Page 5 of 13 Page ID #:251 "Acknowledgment of Agreed Protective Order" made a part hereof by reference and attached hereto as Exhibit A or by affirmation under oath.
a. Counsel for the respective parties agree to provide any witness a copy of Exhibit A and obtain an executed copy of the same prior to the witness's testimony. In the event a witness refuses to sign Exhibit A and therefore does not agree to be bound by this Order, the parties shall meet and confer concerning how to proceed, including but not limited to, determining whether the confidential information counsel wishes to present may be presented in another manner and if necessary, arranging a telephonic conference with the Court to resolve the issue.
5. Except as otherwise provided by this Order or directed by the Court, the parties are prohibited from distributing, showing, disseminating, discussing, corresponding about, or providing photocopies, duplicates, reproductions, abstracts, lists or summaries of any designated Confidential Documents and/or things to any person or entity that is not a "Qualified Person." Moreover, the parties shall not disclose the title, heading or contents or any Confidential Documents and/or things to any person or entity that is not a "Qualified Person." Confidential Documents shall not be published via any medium, including but not limited to the internet.
6. None of the documents or materials produced subject to this Order shall be used by or for the benefit of the party to whom it is produced, or by or for the benefit of any person to whom it is revealed, disclosed, or described pursuant to Section 3, subparagraphs a-g above, for any purpose other than the litigation of this action, except as may be permitted by the provisions of this Order. Case 2:15-cv-05257-DSF-JPR Document 32-1 Filed 06/22/16 Page 6 of 13 Page ID #:252
In the event that any designated Confidential Document(s) or thing(s), or the information contained therein, is to be included with, or part of the contents thereof are in any way to be disclosed in, any pleading, motion, deposition, or other paper to be filed with the Court, such documents shall be filed under seal with a motion to the Court in accordance with L.R. 79-5.2.2, asking that such documents remain filed under seal.
Any deposition transcript or exhibit that includes Confidential Documents or Confidential information shall be subject to the terms and provisions of this Order.
7. Documents containing trade secrets or other confidential research, development or commercial information which provide a party an advantage over competitors by virtue of the information, process, or strategy identified therein may be designated as Confidential Documents, in accordance with decisions of California Courts interpreting Fed. R. Civ. P. 26(c) to permit California trial courts the authority to order disclosure of documents "in a specified way."
8. During the trial of any case, if any party seeks to introduce into evidence documents which are subject to this Order, Cook Defendants may make the appropriate request of the Court to protect against the dissemination of such trade secret or commercially confidential documents.
9. Inadvertent disclosure does not constitute a waiver of the terms and provisions of this Order. In the event of inadvertent disclosure of any documents or data compilations that in any way contain any information constituting a trade secret Case 2:15-cv-05257-DSF-JPR Document 32-1 Filed 06/22/16 Page 7 of 13 Page ID #:253 or confidential or proprietary business information Cook Defendants may assert that the documents produced are Confidential Documents or contain Confidential information and should immediately be stamped, marked, or designated as "Confidential: Subject to Protective Order"; "Company Confidential" or some similar notation and treated by all parties as such. In order to assert this right, Cook Defendants must within 10 days of discovering the inadvertent disclosure serve written notice on all parties. The notice shall specify with particularity the documents which should be treat as subject to the terms of this Order and the dates on which the inadvertent disclosure was made and discovered.
10. All Confidential Documents and/or things subject to the Order shall be destroyed or returned to counsel for Cook Defendants within thirty days after the termination of this litigation (including appeals), whether by dismissal, judgment, settlement, or otherwise. This paragraph shall require the return or destruction of all photocopies, duplicates, or reproductions of Confidential Documents and/or the destruction of any memos, summaries or partial copies that have been furnished to or made by the parties' attorneys and experts or other "Qualified Persons." Counsel for Cook Defendants shall also require the return or destruction of all Confidential Documents transmitted or stored electronically. If Confidential Documents are stored electronically on a computer hard drive or a similar electronic storage device, they shall be permanently deleted. In the event documents are destroyed, counsel for any party hereto that received Confidential Documents shall provide counsel for Case 2:15-cv-05257-DSF-JPR Document 32-1 Filed 06/22/16 Page 8 of 13 Page ID #:254 Cook Defendants with a document certifying that Confidential Documents have been destroyed.
11. After termination of this litigation, the provisions of the Order shall continue to be binding.
12. This Court shall retain jurisdiction over the parties, their attorneys and experts for enforcement of the provisions of this Order until the termination of this litigation.
13. This Order shall be binding upon the parties hereto, upon their attorneys, and upon the parties' and their attorney's successors, executors, personal representatives, and administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or organizations over which they have control.
14. This Order is without prejudice to the right of any party to seek a modification hereof. Nothing contained herein shall be deemed to have the effect of an admission or waiver by any party or of altering the confidentiality or non-confidentiality of any document or information. Either party shall have the right to oppose the production of any information for any proper reason.
15. Nothing herein shall be construed to keep a party or parties from maintaining all deposition transcripts, documents or materials which have been designated as Confidential in his/her or its possession during the pendency of this suit, provided that such party or attorney maintains the confidentiality as set forth inCase 2:15-cv-05257-DSF-JPR Document 32-1 Filed 06/22/16 Page 9 of 13 Page ID #:255 this Order.
The signature of counsel below constitutes their agreement, on behalf of themselves, their law firms and the parties they represent, to be bound by the terms of this Order.
SO STIPULATED.
ACKNOWLEDGEMENT OF AGREED PROTECTIVE ORDER
I, _______________________________, am a "Qualified Person" as defined in Paragraph No. 3 of the Agreed Protective Order which was created for and captioned under the above-captioned matter. I have been provided a copy of the Agreed Protective Order and have read and fully understand the meaning and intent of same.
On my oath, I hereby acknowledge that I will be receiving Confidential Documents pursuant to and as defined in paragraph 1 of that Agreed Protective Order. I further acknowledge that I am not a competitor of Cook Medical, LLC and/or Cook Incorporated or employed by a competitor of Cook Medical, LLC and/or Cook Incorporated. I have been given a copy of, and have read and understand, the Agreed Protective Order and I represent that I am entitled to receive such Confidential Documents pursuant thereto. I understand that: (a) Confidential Documents and any copies thereof are confidential information to remain in my personal custody until I have completed my assigned duties, whereupon they are to be returned to counsel who provided me with such confidential information; (b) no disclosure or use of such Confidential Documents shall be made or permitted for commercial business or competitive reasons, and Confidential Documents shall not be published via any medium, including but not limited to the internet; and (c) I am submitting to the jurisdiction of this Court for purposes of enforcement of that Agreed Protective Order. I further agree to notify the stenographic or clerical personnel who are required to assist me of the terms of the Agreed Protective Order. I also agree not to disseminate any information to anyone, or make disclosure or use of any such information, except for purposes of the above-referenced proceeding or as permitted by the Agreed Protective Order or by further order of the Court.
