STIPULATION FOR ENTRY OF PROTECTIVE ORDER
ALICIA G. ROSENBERG, Magistrate Judge.
STIPULATION
WHEREAS, plaintiff IV Solutions, Inc. ("Plaintiff"), and defendant United HealthCare Services, Inc. ("Defendant") acknowledge and agree that, in the course of this litigation, Parties (as that term is defined below) may produce, exchange and/or copy records and documents that may contain sensitive personal information or trade secrets,1 proprietary, or confidential information. The documents may include medical records, financial records, records of business transactions, including proprietary information, and other privileged information. Parties may also give deposition testimony and answer written discovery during the course of this litigation. This list is illustrative and is not, nor intended to be, exhaustive.
WHEREAS, said documents and records may contain information that may be protected by, among other things, the privacy rights in the California Constitution, privacy rights in the Health Insurance Portability and Accountability Act (HIPAA), and trade secret laws protecting privacy and proprietary, confidential, and trade secret information.
WHEREAS, the purpose of this protective order is to: (a) protect the confidentiality of the information that may be produced in documents, written discovery responses, and deposition testimony; and (b) limit the use of the materials obtained in the course of this litigation to this litigation.
ACCORDINGLY, IT IS HEREBY AGREED AND STIPULATED by and between Plaintiff and Defendant, through their respective counsel, that, during this action, with respect to the disclosure of any information, documents, or things obtained by Plaintiff and/or Defendant, where such items are asserted or contain or comprise trade secret, confidential, or proprietary information, the following procedures shall be employed and the following restrictions shall govern:
1. Definitions: For purposes of this Protective Order, the following definitions shall apply:
a. "Confidential Material": Information (regardless of how created, generated, stored, or maintained) or tangible things that have not been made public, the disclosure of which the Designating Party contends could cause harm to the business operations of the Designating Party or provide improper advantage to others, as well as information that includes non-public personal or private information, such as (without limitation) personal health information.
b. "Confidential Attorneys' Eyes Only" Material ("AEO Material"): Confidential Material that is technical, commercial, financial, or marketing in nature and that the Designating Party reasonably and in good faith believes is so highly sensitive that its disclosure to an employee of a receiving party would reveal significant business or financial advantages of the Designating Party. It includes, without limitation, information that the Designating Party reasonably and in good faith believes relates to (1) current business/strategic plans; (2) technical product specifications and information; (3) sales, cost, and price information including future sales/financial projections; (4) non-public marketing information including future marketing plans; (5) detailed sales and financial data; (6) customer or supplier lists; or (7) other information of competitive, technical, financial, or commercial significance comparable to the items listed in this paragraph.
c. Challenging Party: A Party that challenges the designation of information or items under this Order.
d. Designating Party: A Party that designates information or items that are produced in connection with this litigation in disclosures, in responses to discovery, or otherwise as "Confidential" or "Confidential Attorneys' Eyes Only" Material.
e. Receiving Party: a Party that receives information or items in connection with this litigation in disclosures, in responses to discovery, or otherwise.
2. This Stipulation for Protective Order shall govern the production, use, and handling of Confidential Material and AEO Material produced by any person or entity (whether a party or non-party) that provides discovery in connection with the above-captioned action (hereinafter referred to as "Parties" or "Party"), including responses to written discovery and deposition testimony. All Confidential Material and AEO Material subject to this Protective Order shall be used solely for the prosecution and/or defense of this action and shall not be used by any Receiving Party in any litigation other than this action, for business, for competitive purposes, or for any other purpose whatsoever. The protections conferred by this Stipulation for Protective Order cover not only Confidential Material and AEO Material, but also (1) any information copied or extracted from such Material; (2) all copies, excerpts, summaries, or compilations of such Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal such Material. However, the protections conferred by this Stipulation and Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party.
3. Each Designating Party shall designate Confidential Material by placing a "CONFIDENTIAL" stamp on each page so designated, for each document or information that, in good faith, the Designating Party believes is Confidential Material. Any testimony designated as "CONFIDENTIAL" shall be so designated by a Designating Party at the time of said deposition or within seven (7) business days of receipt of the deposition transcript, whichever is the later. Documents and written discovery responses shall be designated as "CONFIDENTIAL" at the time of production. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order.
4. Each Designating Party shall designate AEO Material by placing a "CONFIDENTIAL ATTORNEYS' EYES ONLY" stamp on each page so designated, for each document or information that, in good faith, the Designating Party believes is AEO Material. Any testimony designated as "CONFIDENTIAL ATTORNEYS' EYES ONLY" shall be so designated by a Designating Party at the time of said deposition or within seven (7) business days of receipt of the deposition transcript, whichever is later. Documents and written discovery responses shall be designated as "CONFIDENTIAL ATTORNEYS' EYES ONLY" at the time of production. Notwithstanding any other terms of this Protective Order, a Party may not designate material produced by another Party as AEO Material. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order.
5. Confidential Material shall not be shown, revealed, released, disclosed, or communicated in any way to any person or entity, except those listed in Paragraphs 6 and 10 below, without the advance written authorization of the Designating Party.
6. Confidential Material may only be disclosed to the following:
a. The Court and its personnel, subject to Paragraph 9 below;
b. The attorneys of record for the parties to this action, their respective associates, partners, clerks, paralegals, legal assistants, secretaries, and other support staff who are actively engaged in assisting such attorneys in the prosecution or defense of this action;
c. Experts retained or consulted by any Party or their counsel as required to assist in the conduct of this action, to the extent that counsel of record determines that disclosure is necessary for the prosecution or defense of this action, provided that prior to disclosure, any such expert is provided with a copy of this Protective Order and acknowledges in writing that he or she agrees to be bound by these terms (see Exhibit A, attached hereto);
d. Plaintiff, Defendant and their respective employees, to the extent that their respective counsel determines that such disclosure is necessary for the prosecution or defense of the Actions and the persons to which Confidential Materials are to be disclosed sign the "Agreement to be Bound by Protective Order" that is attached as Exhibit A; and
e. Clerical or ministerial service providers, including outside copying services and court reporters, retained by a Party's counsel to assist such counsel in connection with this action.
f. Authors, addressees, or recipients of the Confidential Material.
7. AEO Material shall not be shown, revealed, released, disclosed, or communicated in any way to any person or entity, except those listed in Paragraphs 8 and 10 below, without the advance written authorization of the designating Party.
8. AEO Material may only be disclosed to the following:
a. The attorneys of record for the Parties to this action, their respective associates, partners, clerks, paralegals, legal assistants, secretaries, and other support staff who are actively engaged in assisting such attorneys in the prosecution or defense of this action;
b. The Court and its personnel, subject to Paragraph 9 below;
c. The Designating Party, to the extent that its counsel determines that such disclosure is necessary for the prosecution or defense of this action;
d. Designated in-house counsel of the Receiving Party (including in-house counsel's support staff) (1) who has no involvement in competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation, (3) who has signed the "Agreement to Be Bound by Protective Order" (Exhibit A), and (4) as to whom the procedures set forth in paragraph 9, below, have been followed;
e. The author of the document or material and to anyone shown on the document or material as having received it in the ordinary course of business;
f. Experts retained or consulted by any Party or their counsel as required to assist in the conduct of this action, to the extent that counsel of record determines that disclosure is necessary for the prosecution or defense of this action, provided that prior to disclosure, any such expert is provided with a copy of this Protective Order and acknowledges in writing that he or she agrees to be bound by these terms (see Exhibit A, attached hereto); and
g. Such other persons as hereafter may be designated by written authorization by the Designating Party or by further order of the Court, provided that prior to disclosure, any such person is provided with a copy of this Protective Order and acknowledges in writing that he or she agrees to be bound by these terms (see Exhibit A, attached hereto).
9. Unless otherwise ordered by the Court or agreed to in writing by the Designating Party, a Receiving Party that seeks to disclose to designated in-house counsel any information or item that has been designated AEO material pursuant to paragraph 8(d) first must make a written request to the Designating Party that (1) sets forth the full name of the designated in-house counsel and the city and state of his or her residence, and (2) describes the designated in-house counsel's current and reasonably foreseeable future primary job duties and responsibilities in sufficient detail to determine if in-house counsel is involved, or may become involved, in any competitive decision-making.
10. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Receiving Party may not file in the public record any Confidential Material or AEO Material. A Party that seeks to file under seal any Confidential Material or AEO Material must comply with Civil Local Rule 79-5 and the Court's Standing Order Re: Protective Orders and Treatment of Confidential Information. Confidential Material or AEO Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific Confidential Material or AEO Material at issue.
11. Challenging Confidentiality Designations.
a. Timing of Challenges. Any Receiving Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Receiving Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge immediately after the original designation is disclosed.
b. Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of the Protective Order. The Challenging Party and the Designating Party shall attempt to resolve each challenge in good faith and must begin the process by conferring within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner.
c. Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, the Challenging Party may file a motion (in compliance with Civil Local Rule 79-5, if applicable) challenging confidentiality at any time if there is sufficient cause for doing so, including a challenge to the designation of a deposition transcript or any portions thereof Any motion brought pursuant to this provision must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. All Parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation until the court rules on the challenge.
12. A Designating Party will use reasonable efforts to avoid designating, or to de-designate in a reasonable time after request, any document or information as "CONFIDENTIAL" or "ATTORNEYS EYES ONLY CONFIDENTIAL" that is not entitled to such designation or that is generally available to the public. The Party designating information, documents, materials, or items as "confidential" or "AEO" bears the burden of establishing the propriety of such designations.
13. Subject to the provisions of the Federal Rules of Civil Procedure and the Federal Rules of Evidence, nothing in this Protective Order shall in any way limit the uses that the Parties may make of their own Confidential or AEO Material. To the extent a Designating Party elects to publicly disclose Confidential or AEO Material in a court filing (by not filing such under seal), all other Parties may do so likewise.
14. Within thirty (30) days of the conclusion of this action, each Receiving Party shall return all Material designated "CONFIDENTIAL" and/or "CONFIDENTIAL ATTORNEYS' EYES ONLY" to the Designating Party on whose behalf such Material was produced or, at the option of the Designating Party, counsel for each Receiving Party shall certify in writing that such material has been destroyed. Each Receiving Party returning or destroying CONFIDENTIAL and/or CONFIDENTIAL ATTORNEYS' EYES ONLY Material is responsible for any costs associated with the return and/or destruction of such Materials.
15. If a Receiving Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any CONFIDENTIAL and/or CONFIDENTIAL ATTORNEYS' EYES ONLY Material produced by a Designating Party, the Receiving Party must:
a. promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order;
b. promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
c. cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.
16. If the Designating Party timely seeks a protective order, the Receiving Party served with the subpoena or court order shall not produce any information designated in this action as CONFIDENTIAL and/or CONFIDENTIAL ATTORNEYS' EYES ONLY before a determination by the court from which the subpoena or order issued, unless the Receiving 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.
17. This Protective Order shall continue to be binding throughout this action and after its conclusion. The final award in this action shall not relieve any person to whom Confidential Material or AEO Material has been disclosed from the obligation of maintaining the confidentiality of such information as set forth herein.
18. Nothing herein shall operate as a waiver of the right of any person to object on any ground to the admissibility of any Confidential Material or AEO Material in connection with any motions, trial, or arbitration. Nothing herein shall prevent a witness from reviewing a transcript of his or her deposition testimony and any exhibits thereto, in accordance with the Federal Rules of Civil Procedure, or any stipulation placed on the record by counsel.
19. All disputes concerning matters falling within the scope of or relating to the interpretation of this Stipulated Protective Order shall be submitted for ruling to the above-captioned Court. At any hearing on such submitted matter, all persons not specifically contemplated by Paragraphs 6, 8, and 9 shall be excluded from the hearing.
20. By entering into this Stipulation for Protective Order, Plaintiff and Defendant do not waive any right(s) to assert the attorney client privilege, work product doctrine, financial privacy, or any other objection that could be raised in response to any request to produce documents, interrogatory, and/or deposition examination.
21. The inadvertent production in discovery of any privileged or otherwise protected or exempted information, as well as the inadvertent production in discovery of information without an appropriate designation of confidentiality, shall not be deemed a waiver or impairment of any claim or privilege or protection including but not limited to the attorney-client privilege, the protection afforded to work-product materials or the subject matter thereof, or the confidential nature of any such information, provided that the producing Party shall immediately notify the Receiving Party in writing when inadvertent production is discovered. Upon receiving written notice from the producing Party that privileged information or work-product material has been inadvertently produced, the Receiving Party shall not duplicate the privileged information, or distribute the privileged information by any means other than returning it to the producing Party. In addition, once notified of the inadvertent production of privileged information, the Receiving Party shall, if such material has previously been disclosed to others by the Receiving Party, take reasonable steps to obtain all such previously disclosed material and advise such persons of the claims of privilege, work product, or confidentiality.
22. Any violation of the terms of this Protective Order may be punishable by money damages, interim or final injunctive or other equitable relief, sanctions, contempt of court citation, or such other or additional relief as deemed appropriate by the Court. The foregoing remedies shall be in addition to any other common law or statutory relief available for violation of the terms of this Protective Order. Nothing herein is intended to expand the authority vested in any Magistrate Judge to whom a dispute under this Order is assigned.
23. Agreeing to produce or receive Material designated as "CONFIDENTIAL" or "CONFIDENTIAL ATTORNEYS' EYES ONLY", or otherwise complying with the terms of this Protective Order shall not:
a. Operate as an admission by any Party that any Confidential Material or AEO Material contains or reflects trade secrets or any other type of confidential or proprietary information entitled to protection under applicable law;
b. Prejudice in any way the rights of any Party to object to the production of documents it considers not subject to discovery, or operate as an admission by any party that the restrictions and procedures set forth herein constitute adequate protection for any particular information deemed by any party to be Confidential Material or AEO Material;
c. Prejudice in any way the rights of any Party to object to the authenticity or admissibility into evidence of any document, testimony, or the evidence subject to this Protective Order;
d. Prejudice in any way the rights of any Party to seek a determination by the Court whether any Confidential Material or AEO Material should be subject to the terms of this Protective Order;
e. Prejudice in any way the rights of any Party to petition the Court for a further protective order, or modification or amendment of this order, relating to any purportedly Confidential Material or AEO Material; or
f. Prevent any designating party from agreeing to alter or waive the provisions or protections provided for herein with respect to any particular Confidential Material or AEO Material.
IT IS SO STIPULATED:
IT IS SO ORDERED.
EXHIBIT A
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, _______, declare as follows:
I have been requested by counsel for __________________ to assist with or review certain materials that I have been informed contain CONFIDENTIAL INFORMATION or ATTORNEY'S EYES ONLY INFORMATION within the terms of the Protective Order issued by the Court in the action captioned IV Solutions, Inc. v. United Healthcare Services, Inc., et al., United States District Court, Central District of California, Case No. 2:16-CV-09598-MWF.
I have read the Protective Order in this action and am familiar with its terms. On behalf of myself and the business organization with which I am employed or affiliated, if one exists, I agree to comply with and be bound by the Protective Order and agree not to disclose any CONFIDENTIAL MATERIAL or ATTORNEY'S EYES ONLY MATERIAL. I also agree to use such CONFIDENTIAL MATERIAL or ATTORNEY'S EYES ONLY MATERIAL to assist counsel only in this action and not for any other purpose whatsoever.
I hereby submit myself and my business organization, if one exists, to the jurisdiction of the United States District Court for the Central District of California for the limited purpose of any proceeding relating to performance under, compliance with, or violation of the Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this ___ day of _______, 20 __, at _____________________________.
City, State
DATED: _______________________ BY: ______________________
Signature
__________________________
Title
__________________________
Address
__________________________
City, State, Zip
__________________________
Telephone Number
