Huck v. Pfizer Inc, No. 3:2008cv01277 - Document 24 (S.D. Cal. 2009)
Court Description: ORDER Granting 23 Joint Motion for Protective Order and Protective Order. Signed by Magistrate Judge Anthony J. Battaglia on 8/10/2009. (mjj) (jrl).
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Huck v. Pfizer Inc Doc. 24 1 cal 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES R. HUCK, dba HUMAN RESOURCES INTERNATIONAL, 12 Plaintiff, 13 v. 14 PFIZER INC., a Delaware Corporation and DOES 1 through 50, Inclusive, 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv1277 L (AJB) ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER [Doc. No. 23.] 17 This matter comes before the Court upon joint motion of the parties that this Court issue an 18 Order concerning the protection of confidential information in this case. The Court, finding that the 19 motion is well-taken to expedite the flow of discovery material, facilitate the prompt resolution of 20 disputes over confidentiality, and adequately protect material entitled to be kept confidential, it is hereby 21 ORDERED, as follows with respect to documents and things produced or made available for inspection 22 and designation for copying by any of the parties hereto and all others associated with them: 23 1. This Protective Order/Agreement ("Order") shall apply to the above-captioned matter. 24 2. This Order shall bind all parties, agents, attorneys, consultants and representatives of each party, 25 and any other signatory to this Order. 26 3. 27 answers to interrogatories, responses to requests for admissions, deposition transcripts, pleadings, 28 The terms and conditions of this Order shall govern the production and handling of documents, 1 08cv1277 Dockets.Justia.com 1 exhibits, other discovery, and all other information exchanged by the parties or by any third party in 2 response to discovery requests or subpoenas in this matter, the disclosure of deposition testimony, or the 3 content of any information within such testimony. 4 "CONFIDENTIAL" Information Defined 5 4. 6 producing party, including any third party, in good faith, believes to contain (a) proprietary or trade 7 secret information as defined in California Civil Code Section 3426.1(d); (b) personal financial 8 information; (c) employee personal privacy information; or (d) confidential and identifiable health 9 information (such as health information that is connected to a patient's name, address, social security The designation of information as "CONFIDENTIAL" shall be limited to information that any 10 number or other identifying information) that is subject to the Standards of Privacy of Individually 11 Identifiable Health Information, 45 CFR parts 160 and 164, promulgated pursuant to the Health 12 Insurance Portability and Accountability Act of 1996 (HIPAA). The foregoing list is without prejudice 13 to a party seeking protection for additional categories from the Court. 14 5. 15 other purpose without prior written approval from the Court or the prior written consent of the 16 producing person. All persons receiving or given access to "CONFIDENTIAL" information in 17 accordance with the terms of this Order consent to the continuing jurisdiction of the Court for purposes 18 of enforcing this Order and remedying any violations thereof. 19 6. 20 tangible thing, transcript or oral testimony or recorded statement, including, without limitation, 21 transcripts, answers to interrogatories and other responses to discovery requests, e-mails, pleadings, 22 briefs, rulings from a court or arbitration panel, summaries, notes, abstracts, motions, drawings, 23 illustrations, diagrams, blueprints, journal entries, logbooks, compositions, devices, test reports, 24 programs, code, commands, electronic media, databases, and any other records and reports which 25 comprise, embody or summarize information. 26 7. 27 or filed/served by any party or person, including third parties, in the Litigation may be designated 28 "CONFIDENTIAL" information shall be used solely for purposes of this Litigation and for no "CONFIDENTIAL" information may include or be included in any document, physical object, All or any part of a document, tangible item, discovery response or pleading disclosed, produced, 2 08cv1277 1 "CONFIDENTIAL" by the producing or disclosing party by making the appropriate legend on the face 2 of the document and each page so designated. With respect to tangible items, the appropriate legend 3 shall be marked on the face of the tangible item if possible, and if not possible, by delivering at the time 4 of disclosure, production or filing to the party to which disclosure is made, written notice that such 5 tangible item is "CONFIDENTIAL." 6 Use of "CONFIDENTIAL" Information 7 8. 8 the minimum amount necessary for the disclosure purpose, only to the following persons: 9 (a) Information designated "CONFIDENTIAL" may only be disclosed on a "need to know" basis, in parties or their employees, in-house counsel, in-house paralegals and outside counsel, and the 10 paralegal, clerical, secretarial, and other staff employed or retained by such outside counsel; 11 (b) 12 imaging services, and database/coding services retained by the parties' counsel; 13 (c) 14 neither to use nor disclose such "CONFIDENTIAL" information, including, but not limited to, in any 15 other litigation or proceeding; and (iii) has executed a Certification attached hereto as Exhibit A; 16 (d) 17 testimony during trial, a deposition/trial witness who appears, based upon the document itself or other 18 testimony, to have knowledge of the contents of the document designated "CONFIDENTIAL" or the 19 specific events, transactions, discussions, or dates reflected in the document; 20 (e) any private mediators utilized in the Litigation; and 21 (f) the Court and any Special Masters or Mediators appointed by the Court. 22 9. Anyone receiving discovery shall take all steps reasonably necessary to prevent the disclosure of 23 "CONFIDENTIAL" information other than in accordance with the terms of this Order. In the event of a 24 change in counsel, retiring counsel shall fully instruct new counsel of their responsibilities under this 25 Order. court reporters, interpreters, translators, copy services, graphic support services, document an expert or consultant who (i) is retained by any attorney to assist with the Litigation, (ii) agrees during depositions, preparation for depositions, testimony during trial, and preparation for 26 27 28 3 08cv1277 1 10. 2 the terms of this Order to the same extent as the information or document(s) from which the summary or 3 copy is made. 4 Subpoenas and Requests for Disclosure 5 11. 6 request or subpoena for production or disclosure of "CONFIDENTIAL" information shall immediately 7 give notice by facsimile and email to the producing party identifying the information sought and 8 enclosing a copy of the subpoena or request. The party receiving the request or subpoena shall make no 9 production of the "CONFIDENTIAL" information until at least 21 days has elapsed from the date the 10 receiving party provided such notice to the producing party, in order to allow the producing party time 11 to make a motion or other application to prevent enforcement of the subpoena or other request. Once the 12 producing party has made a motion or other application to prevent enforcement of the subpoena, the 13 person or party subject to the subpoena or other request shall not produce or disclose the requested 14 information without consent of the producing party or until ordered by a court of competent jurisdiction. 15 If the entity seeking "CONFIDENTIAL" information is a United States government agency investigat- 16 ing a violation of law, the foregoing in paragraph 11 does not apply, and such "CONFIDENTIAL" 17 information may be provided without restriction to such an agency. 18 Disclosure of "CONFIDENTIAL" Information 19 12. 20 information under the terms of this Order, to read the Order and comply fully with its terms. Persons 21 receiving "CONFIDENTIAL" information are prohibited from disclosing it to any person except in 22 conformance with this Order. The recipient of any "CONFIDENTIAL" information agrees to subject 23 himself/herself to the jurisdiction of any Court having jurisdiction of this matter or the parties for the 24 purpose of any proceedings relating to the performance under, compliance with, or violation of this 25 Order. 26 13. 27 Order may subject the disclosing person to such sanctions and remedies as the Court may deem 28 Any summary or copy of any "CONFIDENTIAL" documents or information shall be subject to Any person, entity or named party receiving "CONFIDENTIAL" information that receives a Counsel shall instruct each person to whom they disclose or give access to "CONFIDENTIAL" Disclosure of "CONFIDENTIAL" information other than in accordance with the terms of this 4 08cv1277 1 appropriate. Nothing in this order shall prevent the parties from providing "CONFIDENTIAL" 2 information to a United States government agency, and any such provision does not effect a waiver of 3 confidentiality. 4 14. 5 and safe area and shall exercise the same standard of due and proper care with respect to the storage, 6 custody, use and/or dissemination of such information as is exercised by the recipient with respect to his 7 or her own confidential or proprietary information. 8 15. Counsel agree to maintain a file of all executed Certifications (Exhibit A) required by this Order. 9 16. A deponent, his or her counsel, or any named party may designate deposition/arbitration The recipient of any "CONFIDENTIAL" information shall maintain such information in a secure 10 testimony and exhibits (or portions thereof) of any witness in the Litigation as "CONFIDENTIAL" at 11 the time of the deposition (or in the case of arbitration testimony, at the time of the arbitration) by 12 stating as such on the record and advising the reporter and all parties of such fact at the time. If any 13 portion of a videotaped deposition is designated pursuant to this Paragraph, the media (videotape, 14 CD-ROM, DVD, etc.) shall be labeled with the appropriate legend. Unless a shortened time period is 15 required as set forth below, within thirty (30) days of receipt of a final transcript, the deponent, his or 16 her counsel, or any other party may further designate all or portions of the transcript as "CONFIDEN- 17 TIAL." The deponent, his/her counsel, or any other party shall list on a separate piece of paper the page 18 and line numbers of the portions of the deposition transcript containing "CONFIDENTIAL" information 19 and serve the same on counsel for all parties to the Litigation. Pending such designation, the entire 20 deposition transcript, including exhibits, shall be deemed "CONFIDENTIAL" information. If no 21 designation is made either at the time of the deposition or within thirty (30) days after receipt of the final 22 transcript, the transcript shall be deemed not to contain any "CONFIDENTIAL" information. 23 Filings Containing "CONFIDENTIAL" Information 24 17. 25 information contained therein or attached thereto as attachments or exhibits. Any filings containing 26 "CONFIDENTIAL" information will be subject to the restrictions on use and distribution set forth 27 herein. 28 Any filings with the Court in this matter shall be marked according to the nature of the 5 08cv1277 1 18. If, for any reason any documents or pleadings are to be filed with any Court that contain 2 "CONFIDENTIAL" information, such documents or pleadings shall be filed under seal pursuant to the 3 applicable rules of court, as set forth in the next paragraph. The party that produced the "CONFIDEN- 4 TIAL" information may waive this requirement with respect to another party's filing by consent or with 5 respect through its own filing by not filing under seal. Waiver with respect to any document or 6 information shall not constitute waiver as to any other "CONFIDENTIAL" document or information. 7 19. 8 judge before whom the hearing or proceeding will take place. Such order must be sought by ex parte 9 application by the affected party with appropriate notice to opposing counsel. Nothing will be accepted for filing under seal with the Court without separate prior order by the 10 20. 11 to "CONFIDENTIAL" information from attending any hearing or deposition at which such information 12 is revealed. 13 Challenges to "CONFIDENTIALITY", No Admission of Relevance or Admissibility 14 21. 15 "CONFIDENTIAL" actually is confidential information that will not be required to be disclosed in the 16 public record. Any named party may object, in writing, to the designation by another party by 17 specifying the information in issue and its grounds for questioning the designation. A named party shall 18 not be obligated to challenge the propriety of a designation at the time made, and a failure to do so shall 19 not preclude any subsequent challenge. In the event that any party to the Litigation disagrees at any 20 point in these proceedings with the designation by the producing party, the parties shall try first to 21 dispose of such dispute in good faith on an informal basis. If the parties cannot resolve the dispute 22 within ten (10) days after service of a written objection, the party challenging the designation may file a 23 motion to compel any time within ten (10) and thirty-one (31) days after service of a written objection. 24 The information, documents or materials shall continue to receive the protection of their designation 25 until the expiration of the appeal period applicable to any ruling by the Court on the motion. 26 22. 27 admissibility of any documents, testimony or other evidence in the Litigation. This Order is without 28 At the request of a producing party, the Court will limit or restrict person(s) not permitted access Nothing in this Order shall be construed in any way as a finding that information designated Nothing herein shall be construed to be an admission of relevance or to affect, in any way, the 6 08cv1277 1 prejudice to the right of any party, including third parties, to bring before the Court the question of 2 whether any particular information is or is not discoverable or admissible. 3 23. 4 clients with respect to the Litigation and in the course thereof. 5 Inadvertent or Unauthorized Disclosure of Material not Marked "CONFIDENTIAL" 6 24. 7 DENTIAL" information shall not constitute a waiver of any claim of confidentiality where : (a) the 8 producing party notifies a receiving party in writing of such inadvertent or mistaken disclosure within 9 ten (10) business days of becoming aware of such disclosure and, (b) within thirty (30) days of such Nothing in this Order shall bar or otherwise restrict any attorney herein from rendering advice to The inadvertent or mistaken disclosure by a producing party of material not marked as "CONFI- 10 notice, the producing party provides properly redesignated documents to the receiving party. During the 11 thirty (30) day period after notice, the materials shall be treated as designated in the producing party's 12 notice. Upon receipt of properly redesignated documents, the receiving party shall return all unmarked 13 or incorrectly designated documents and other materials to the producing party within five (5) business 14 days. The receiving party shall not retain copies thereof and shall treat information contained in said 15 documents and materials and any summaries or notes thereof, as appropriately marked pursuant to the 16 producing party's notice. 17 25. 18 a receiving party to any person or party not authorized under this Order, then the receiving party shall: 19 (a) immediately notify the disclosing/producing party or entity of the disclosure and the identity of the 20 person or party to whom the information was disclosed; (b) use its best efforts to obtain the return of any 21 such "CONFIDENTIAL" information and to bind such person or party to the terms of this Order; (c) 22 immediately inform the unauthorized person or party of all provisions of this Order; and (d) use its best 23 efforts to have such person or party immediately sign the Certification attached hereto as Exhibit A, and 24 immediately serve the executed certification upon counsel for the producing party. Nothing in this 25 Paragraph is intended to limit the remedies that the producing party may pursue for breach of this Order. 26 //// 27 //// 28 Should any "CONFIDENTIAL" information be disclosed, through inadvertence or otherwise, by 7 08cv1277 1 Third-Party Information 2 26. 3 entitled to the protections afforded herein by signing a copy of this Order and serving same on all 4 counsel of record. Thereafter, a producing person or entity may designate as "CONFIDENTIAL" oral 5 testimony, information, documents or things that such producing person or entity has produced or 6 provided in the action. 7 Termination of Action 8 27. 9 effect thereafter. A producing person or entity who is not a party or an affiliated entity in the Litigation shall be This Order shall survive the termination of this Litigation and shall continue in full force and 10 28. 11 copy of deposition transcripts and exhibits, court transcripts and exhibits, and documents and other 12 materials submitted to the Court. Such material shall continue to be treated as designated under this 13 Order. Within sixty (60) days after termination of the Litigation, at the request of the producing party, 14 counsel for the receiving party shall (a) return all other "CONFIDENTIAL" information in his/her 15 possession, custody or control or in the custody of any authorized agents, outside experts and consul- 16 tants retained or utilized by counsel for the receiving party to counsel for the party who has provided 17 such "CONFIDENTIAL" information and (b) certify destruction/ complete erasure of any electroni- 18 cally-stored material to the producing party's counsel. 19 Modifications 20 29. 21 Court for relief therefrom, or from applying to the Court for further or additional protective orders or 22 modifications of this Agreement. 23 Miscellaneous 24 30. 25 parties agree should not be designated "CONFIDENTIAL"; (b) the parties agree, or the Court rules, is 26 already public knowledge; (c) the parties agree, or the Court rules, has become public knowledge other 27 than a result of disclosure by the receiving party, its employees, or its agents in violation of this Order; 28 After final termination of this action, the outside counsel for a named party may each retain one Nothing in this Agreement shall prevent any named party or third party from applying to the The restrictions and obligations set forth herein shall not apply to any information that: (a) the 8 08cv1277 1 or (d) has come or shall come into the receiving party's legitimate knowledge independently of this 2 production by the designating party. 3 31. 4 information designated as "CONFIDENTIAL" with anyone if that person already has or obtains 5 legitimate possession thereof. 6 IT IS SO ORDERED. The restrictions and obligations herein shall not be deemed to prohibit discussions of any 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 08cv1277 1 2 EXHIBIT A AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 3 4 I hereby attest to my understanding that information or documents designated confidential are provided 5 to me subject to the Protective Order in the above-captioned litigation; that I have been given a copy of 6 and have read the Protective Order, and that I agree to be bound by its terms. 7 8 I further agree that I shall not disclose to others, except in accord with the Protective Order, any 9 "CONFIDENTIAL" material, in any form whatsoever, and that such "CONFIDENTIAL" material and 10 the information contained therein may be used only for the purposes authorized by the Protective Order. 11 12 I further agree and attest to my understanding that my obligation to honor the confidentiality of such 13 material and information will continue even after this litigation concludes. 14 15 I further agree and attest to my understanding that, if I fail to abide by the terms of the Protective Order, 16 I may be subject to sanctions, including contempt of court, for such failure. I agree to be subject to the 17 jurisdiction of the United States District Court for the Southern District of California, for the purposes of 18 any proceedings relating to enforcement of the Protective Order. 19 20 I further agree to be bound by and to comply with the terms of the Protective Order as soon as I sign this 21 Order, whether or not the Protective Order has yet been entered as an Order of the Court. 22 IT IS SO ORDERED 23 24 DATED: August 10, 2009 25 Hon. Anthony J. Battaglia U.S. Magistrate Judge United States District Court 26 27 28 K:\COMMON\BATTAGLI\CASES\2 Orders to be filed\08cv1277.huck.wpd 10 08cv1277 1 . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\BATTAGLI\CASES\2 Orders to be filed\08cv1277.huck.wpd 11 08cv1277
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