CHARLES F. EICK, Magistrate Judge.
This is a product liability case involving Nifedipine, an FDA-approved prescription drug. To expedite the flow of discovery material; facilitate the prompt resolution of disputes over confidentiality, and to adequately protect material entitled to be kept confidential, such as trade secrets, proprietary information, confidential research or development, medical records, and other Confidential Information and documents, plaintiffs Churee Haley and Rojelio Serrano and defendant Pfizer Inc. ("Pfizer") have stipulated, and IT IS HEREBY ORDERED THAT the following provisions shall govern the documents, materials or other things or portions thereof (and the information contained therein) produced in discovery by any party to this litigation:
1. The following definitions shall apply to this Protective Order of Confidentiality (hereinafter "Order"):
2. The following procedures shall apply to designated documents subject to this Order and disputes arising from such a designation:
The Confidential Legend shall be affixed to each page of material to be designated, but shall not obscure any part of the text. A designation shall subject the document, and its contents, to this Order without any further action on the part of the person desiring confidentiality. The inadvertent failure to stamp a document, or portion thereof, with the Confidential Legend in no way alters or waives the protected and confidential nature of the document and does not remove it from the scope of this Order. Further, all parties agree that they will not seek to use Confidential Information containing the Confidential Legend at trial, but will permit the producing party or its counsel to substitute clean copies for use only at trial to be returned to the producing party or its counsel thereafter.
3. All confidential documents, materials, or other things, or portions thereof (and the information contained therein), shall be used only for the purposes of this case, including trial and preparation for trial, shall not be used for any other purpose, including other litigation (except as allowed by applicable rules of evidence), and shall not be disclosed to any person or governmental agency or otherwise made public except in compliance with the terms of this Order, or by determination of the Court.
4. Pfizer and plaintiffs each have the right to have persons, including security personnel, present in the inspection room at all times during the other party's inspection of documents, materials, or other things, or portions thereof (and the information contained therein) produced pursuant hereto. The parties shall provide reasonable advance notice of the names of all individuals who will attend such inspections. The number of persons present during this process is limited to those necessary to adequately facilitate inspection and review of documents, and any such persons must comply with the terms of this Order. The original documents, materials, or other things, or portions thereof (and the information contained therein) produced under the terms of this Order shall remain in the custody and control of the producing party at all times but may be inspected if questions arise from a review of copies of the originals.
5. Within 60 days after the final disposition of this case, the receiving party shall exercise reasonable best efforts to ensure that all Confidential Information and copies of Confidential Information shall either: (1) be returned and surrendered to the producing party or person; or (2) be destroyed. Final disposition shall be taken and construed as the entry of a final, non-appealable order disposing of this case. Upon such final disposition, counsel of record for the receiving party shall notify counsel for the producing party of such return and surrender, or certify to counsel for the producing party that such Confidential Information has been destroyed. Counsel for the receiving party shall make a reasonable effort to retrieve or request any document, material, or other thing, or portions thereof (and the information contained therein) or information subject to this Order from any party or non-party witness to whom such information has been given, and shall notify in writing counsel for the producing party of the failure to retrieve any such information, the reasons therefore, and the identity of the person from whom the document, material, or other thing, or portions thereof (and the information contained therein) or information could not be retrieved. Such notification shall identify any document, material, or other thing, or portions thereof (and the information contained therein) not returned or certified destroyed.
6. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify — so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions. If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation.
7. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "CONFIDENTIAL" only to:
8. If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designed in this action as "CONFIDENTIAL," that Party must:
If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as "CONFIDENTIAL" before a determination by the court from which the subpoena or order issued unless the Party has obtained the Designating Party's permission. The Designating Party shall bear the burden and expense of seeking protection in that court of its confidential material — and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court.
9. This Order shall remain in full force and effect, and each person subject to this Order shall continue to be subject to the jurisdiction of this Court, for the purpose of enforcement of the terms of this Order, even after termination of the lawsuit. The Court shall not be divested of the power to enforce the terms of this Order as to any persons subject to the terms of this Order by the conclusion of this case, or by the filing of a notice of appeal or other pleading that arguably has the effect of divesting this Court of jurisdiction of this matter generally.
10. All counsel shall at all times keep secure all notes, abstractions, or other work product derived from or containing Confidential Information, shall be obligated to maintain the confidentiality of such work product, and shall not disclose or reveal the contents of said notes, abstractions, or other work product after the documents, materials, or other things, or portions thereof (and the information contained therein) and information are returned and surrendered.
11. A party may assert a claim of confidentiality as to any document, material, other thing, or portions thereof (and the information contained therein) by designating it as Confidential Information. Documents, materials, or other things entitled to be kept confidential include those related to medical records, trade secrets, proprietary information, and confidential research or development. Nothing herein shall (a) prevent the producing party from disclosing any confidential document, material, or other thing, or portions thereof (and the information contained therein) that it has produced to any other person; or (b) otherwise restrict the use of such documents, materials, or other things, or portions thereof (and the information contained therein) by the producing party. Such disclosure shall not be deemed to waive or otherwise modify the protection or confidentiality provided herein.
12. The parties shall negotiate in good faith prior to making any motion relating to any violation or alleged violation of this Order. Any party may expressly waive in writing the applicability of any provision of this Order to any information, document, material, or other thing, or portions thereof (and the information contained therein) that any party produces. Such waiver will apply only to the information, document, material, or other thing, or portions thereof (and the information contained therein) to which the applicability of any provision of this Order is expressly waived. A partial waiver as to certain information, document, material, or other thing, or portions thereof (and the information contained therein) does not constitute a waiver as to the remainder of such information or document, material, thing, or other thing, or portions thereof (and the information contained therein). Any motion relating to any violation or alleged violation of this Order must be made in strict compliance with Local Rules 37-1 and 37-2 (including the Joint Stipulation requirement).
13. Each person examining the produced materials or to whom any of the contents thereof are disseminated hereby agrees to be subject to the jurisdiction of this Court for appropriate proceedings in the event of any violation or alleged violation of this Order.
14. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order.
15. The parties recognize that when large volumes of documents are provided to the requesting party's counsel for preliminary inspection and designation for copying, these documents may have not yet been reviewed for confidentiality purposes, and the producing party reserves the right to designate documents after they are designated by the requesting party for copying. During the preliminary inspection process, all documents reviewed by the requesting party's counsel shall be treated as Confidential Documents.
16. Pursuant to Federal Rule of Evidence 502(d), disclosure of information protected by the attorney-client privilege, work product doctrine, or other applicable privilege or protection in this litigation (collectively, "privileged information") shall not constitute a waiver of any valid claim of privilege, and failure to assert a privilege in this litigation as to one document or communication shall not be deemed to constitute a waiver of the privilege as to any other document or communication allegedly so protected, even involving the same subject matter.
17. If a party discovers that it has produced privileged information, that party may give notice to the receiving party and request its return. Upon agreement, the privileged document, together with all copies thereof and any notes made therefrom, shall be returned within 15 days to the party, and the receiving party shall not use such information for any purpose.
18. When a producing party gives notice to a receiving party that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the receiving party are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). If a receiving party discovers an apparent inadvertent disclosure of privileged information by a producing party, a receiving party shall take reasonable steps to notify the producing party that privileged information has been produced and, upon agreement, shall return the privileged document, together with all copies thereof and any notes made therefrom, within 15 days. Thereafter, the receiving party shall not use such information for any purpose.
19. Counsel for the receiving party shall make a good-faith effort to ensure compliance with the provisions of this Order. In the event of new counsel and/or a change in counsel, the parties and/or retiring counsel shall fully instruct new counsel of its responsibilities under this Order.
20. The parties hereto stipulate and consent to the issuance of this Order as an Order of this Court.
I, ______________________________ [print or type full name], of ______ ______________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court of the Central District of California on _____ ________________[date] in the case of Churee Haley, et al. v. Bayer Healthcare et al., Case No. 8:16-cv-00546 JLS (E). I agree to comply with and to be bound by all the terms of this Stipulated Protective Order, and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the California Superior Court for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint _____________________________ [print or type full name] of ______________________________[print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order.
