1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF CALIFORNIA
4 ASSOCIATION FOR ACCESSIBLE
5 MEDICINES, No. 2:20-cv-1708 TLN DB
6 Plaintiff, STIPULATION AND PROTECTIVE
7 v. ORDER 8 ROB BONTA, IN HIS OFFICIAL
9 CAPACITY AS ATTORNEY GENERAL OF
10 THE STATE OF CALIFORNIA,
11 Defendant. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff Association for Accessible Medicines (“AAM”) and Defendant Rob Bonta, in his
2 official capacity as the Attorney General of California (“AG”) (hereinafter collectively the “Parties”
3 or individually a “Party”) anticipate that documents and information containing or reflecting
4 proprietary, trade secret, and/or commercially sensitive information may be disclosed or produced
5 during the course of discovery and otherwise in the above-captioned action (the “Action”). The
6 Parties, by and through their respective undersigned counsel, hereby stipulate to and request the
7 entry of the following Protective Order setting forth the conditions for treating, obtaining, and using
8 such information.
9 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good cause
10 for the following Joint Stipulated Protective and Confidentiality Order (the “Stipulation and
11 Protective Order”).
12 1. Confidentiality of Materials 13 (a) The Parties agree that “Confidential Information” means any information, whether 14 oral, in documentary, or other tangible form, so designated by either Party (and any non-Party) that 15 the Party or non-Party reasonably and in good faith believes contains confidential commercial 16 information, proprietary financial information, trade secrets, or any other type of information 17 protectable under Fed. R. Civ. P. 26, or any other applicable state, federal or regulatory doctrine 18 and which is designated as “CONFIDENTIAL” OR “HIGHLY CONFIDENTIAL – 19 ATTORNEYS’ EYES ONLY.” 20 (b) Any information supplied in documentary or other tangible form may be designated 21 as Confidential Information by placing or affixing on such documents, or on the face of such thing, 22 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 23 (c) Any information designated as “CONFIDENTIAL” may be disclosed only to (i) the 24 Parties; (ii) the law firm of counsel of record for Plaintiff in this Action; (iii) attorneys, officials, 25 investigators, paralegals, legal interns, and stenographic and clerical workers employed by the 26 Healthcare Rights and Access Section of Defendant who are actively working on this Action and 27 who need to access the produced documents for the purposes of this Action; (iv) managers, 28 supervisors, and officials to whom the personnel described in subpoint (c)(iii) above report and 1 who need to access the documents as part of their managerial or supervisory duties relevant to this
2 Action; or (v) any other person with prior written consent of the producing Party.
3 (d) Any information designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’
4 EYES ONLY” may be disclosed only to: (i) the law firm of counsel of record for Plaintiff in this
5 Action; (ii) attorneys, officials, investigators, paralegals, legal interns, and stenographic and clerical
6 workers employed by the Healthcare Rights and Access Section of Defendant who are actively
7 working on this Action and who need to access the produced documents for the purposes of this
8 Action; (iii) managers, supervisors, and officials to whom the personnel described in subpoint
9 (d)(ii) above report and who need to access the documents as part of their managerial or supervisory
10 duties relevant to this Action; (iv) any other person with prior written consent of the producing
11 Party.
12 (e) The Parties and their counsel of record may disclose and permit the disclosure of 13 Confidential Information to the following third parties: (i) the Court; (ii) Court reporters engaged 14 for depositions and hearings; and (iii) jurors and Court personnel at trial of the Action. 15 (f) Absent a specific order by this Court, all information or documents disclosed in the 16 Action and designated as either CONFIDENTIAL or HIGHLY CONFIDENTIAL under this 17 Stipulation and Protective Order shall be used by the receiving Party solely for the purposes of the 18 Action and not in connection with any other litigation or judicial or regulatory proceeding or for 19 any business, commercial, competitive, personal, or other purpose. Confidential Information shall 20 not be disclosed to any governmental entity, including the Federal Trade Commission, without 21 prior written consent of the producing Party or non-Party. The Parties agree not to use any 22 Confidential Information to seek disclosure in any other proceeding. 23 (g) If Confidential Information in the possession, custody, or control of any receiving 24 Party is sought by a subpoena, civil investigative demand, request for production of documents, 25 interrogatories, or any other compulsory process whether issuing from any court, administrative or 26 legislative body, or any other person, agency, or tribunal purporting to have opportunity to seek 27 such information by compulsory process, the receiving Party to whom the process or discovery is 28 directed shall: (i) give notice by email together with a copy thereof to counsel of record for the 1 producing Party or non-Party promptly, and in no event fewer than five (5) business days prior to
2 the deadline for producing or objecting to production of such Confidential Information; (ii)
3 cooperate to the extent reasonably necessary to permit the producing Party or non-Party to object
4 to or seek to quash such process or discovery request; and (iii) if the producing Party or non-Party
5 makes a timely objection or seeks a protective order in the relevant action, the receiving Party shall
6 not produce any Confidential Information until a court rules on the objection and/or request for a
7 protective order (or until the producing Party consents in writing to the production).
8 2. Protection of Confidential Information. The Parties shall ensure that access to
9 Confidential Information provided to them pursuant to this Stipulation and Protective Order is
10 strictly limited as prescribed herein. The Parties shall ensure that Confidential Information is used
11 only as provided in this Stipulation and Protective Order, and that such Confidential Information is
12 not duplicated except to the extent necessary for use as permitted by this Stipulation and Protective 13 Order (with appropriate security measures taken to ensure that any such copies are maintained in a 14 confidential manner). Counsel for each Party shall take reasonable measures to limit unauthorized 15 disclosure of any designated Confidential Information. Each Party shall have the responsibility, 16 through counsel, to promptly advise the producing Party or non-Party of any losses or compromises 17 of the confidentiality of the Confidential Information. 18 3. Filings. A Party that seeks to file anything that is designated as Confidential 19 Information shall seek to file it under seal in compliance with the requirements of the Local Rules 20 of this Court. Courtesy copies of such documents shall also be redacted and shall not contain any 21 reference to the contents of the Confidential Information unless requested by the Court.
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1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE EASTERN DISTRICT OF CALIFORNIA
4 ASSOCIATION FOR ACCESSIBLE
5 MEDICINES, No. 2:20-cv-1708 TLN DB
6 Plaintiff, STIPULATION AND PROTECTIVE
7 v. ORDER 8 ROB BONTA, IN HIS OFFICIAL
9 CAPACITY AS ATTORNEY GENERAL OF
10 THE STATE OF CALIFORNIA,
11 Defendant. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff Association for Accessible Medicines (“AAM”) and Defendant Rob Bonta, in his
2 official capacity as the Attorney General of California (“AG”) (hereinafter collectively the “Parties”
3 or individually a “Party”) anticipate that documents and information containing or reflecting
4 proprietary, trade secret, and/or commercially sensitive information may be disclosed or produced
5 during the course of discovery and otherwise in the above-captioned action (the “Action”). The
6 Parties, by and through their respective undersigned counsel, hereby stipulate to and request the
7 entry of the following Protective Order setting forth the conditions for treating, obtaining, and using
8 such information.
9 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good cause
10 for the following Joint Stipulated Protective and Confidentiality Order (the “Stipulation and
11 Protective Order”).
12 1. Confidentiality of Materials 13 (a) The Parties agree that “Confidential Information” means any information, whether 14 oral, in documentary, or other tangible form, so designated by either Party (and any non-Party) that 15 the Party or non-Party reasonably and in good faith believes contains confidential commercial 16 information, proprietary financial information, trade secrets, or any other type of information 17 protectable under Fed. R. Civ. P. 26, or any other applicable state, federal or regulatory doctrine 18 and which is designated as “CONFIDENTIAL” OR “HIGHLY CONFIDENTIAL – 19 ATTORNEYS’ EYES ONLY.” 20 (b) Any information supplied in documentary or other tangible form may be designated 21 as Confidential Information by placing or affixing on such documents, or on the face of such thing, 22 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 23 (c) Any information designated as “CONFIDENTIAL” may be disclosed only to (i) the 24 Parties; (ii) the law firm of counsel of record for Plaintiff in this Action; (iii) attorneys, officials, 25 investigators, paralegals, legal interns, and stenographic and clerical workers employed by the 26 Healthcare Rights and Access Section of Defendant who are actively working on this Action and 27 who need to access the produced documents for the purposes of this Action; (iv) managers, 28 supervisors, and officials to whom the personnel described in subpoint (c)(iii) above report and 1 who need to access the documents as part of their managerial or supervisory duties relevant to this
2 Action; or (v) any other person with prior written consent of the producing Party.
3 (d) Any information designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’
4 EYES ONLY” may be disclosed only to: (i) the law firm of counsel of record for Plaintiff in this
5 Action; (ii) attorneys, officials, investigators, paralegals, legal interns, and stenographic and clerical
6 workers employed by the Healthcare Rights and Access Section of Defendant who are actively
7 working on this Action and who need to access the produced documents for the purposes of this
8 Action; (iii) managers, supervisors, and officials to whom the personnel described in subpoint
9 (d)(ii) above report and who need to access the documents as part of their managerial or supervisory
10 duties relevant to this Action; (iv) any other person with prior written consent of the producing
11 Party.
12 (e) The Parties and their counsel of record may disclose and permit the disclosure of 13 Confidential Information to the following third parties: (i) the Court; (ii) Court reporters engaged 14 for depositions and hearings; and (iii) jurors and Court personnel at trial of the Action. 15 (f) Absent a specific order by this Court, all information or documents disclosed in the 16 Action and designated as either CONFIDENTIAL or HIGHLY CONFIDENTIAL under this 17 Stipulation and Protective Order shall be used by the receiving Party solely for the purposes of the 18 Action and not in connection with any other litigation or judicial or regulatory proceeding or for 19 any business, commercial, competitive, personal, or other purpose. Confidential Information shall 20 not be disclosed to any governmental entity, including the Federal Trade Commission, without 21 prior written consent of the producing Party or non-Party. The Parties agree not to use any 22 Confidential Information to seek disclosure in any other proceeding. 23 (g) If Confidential Information in the possession, custody, or control of any receiving 24 Party is sought by a subpoena, civil investigative demand, request for production of documents, 25 interrogatories, or any other compulsory process whether issuing from any court, administrative or 26 legislative body, or any other person, agency, or tribunal purporting to have opportunity to seek 27 such information by compulsory process, the receiving Party to whom the process or discovery is 28 directed shall: (i) give notice by email together with a copy thereof to counsel of record for the 1 producing Party or non-Party promptly, and in no event fewer than five (5) business days prior to
2 the deadline for producing or objecting to production of such Confidential Information; (ii)
3 cooperate to the extent reasonably necessary to permit the producing Party or non-Party to object
4 to or seek to quash such process or discovery request; and (iii) if the producing Party or non-Party
5 makes a timely objection or seeks a protective order in the relevant action, the receiving Party shall
6 not produce any Confidential Information until a court rules on the objection and/or request for a
7 protective order (or until the producing Party consents in writing to the production).
8 2. Protection of Confidential Information. The Parties shall ensure that access to
9 Confidential Information provided to them pursuant to this Stipulation and Protective Order is
10 strictly limited as prescribed herein. The Parties shall ensure that Confidential Information is used
11 only as provided in this Stipulation and Protective Order, and that such Confidential Information is
12 not duplicated except to the extent necessary for use as permitted by this Stipulation and Protective 13 Order (with appropriate security measures taken to ensure that any such copies are maintained in a 14 confidential manner). Counsel for each Party shall take reasonable measures to limit unauthorized 15 disclosure of any designated Confidential Information. Each Party shall have the responsibility, 16 through counsel, to promptly advise the producing Party or non-Party of any losses or compromises 17 of the confidentiality of the Confidential Information. 18 3. Filings. A Party that seeks to file anything that is designated as Confidential 19 Information shall seek to file it under seal in compliance with the requirements of the Local Rules 20 of this Court. Courtesy copies of such documents shall also be redacted and shall not contain any 21 reference to the contents of the Confidential Information unless requested by the Court. The copies 22 of any documents filed under seal pursuant to this paragraph shall be marked in 12-point or larger 23 typeface, “Confidential -- Contains Information Subject to Protective Order in Case No. 2:20-cv- 24 01708-TLN-DB, United States District Court, Eastern District of California.” 25 4. Disagreement concerning the Treatment of Confidential Information. If the Parties 26 dispute whether designated Confidential Information is entitled to confidential treatment, the 27 Parties shall treat the matter as a discovery disagreement pursuant to Local Rule 251. The burden 28 of persuasion in any such discovery disagreement shall be on the party seeking to assert that the 1 information should be treated as Confidential or Highly Confidential—Attorney’s Eyes Only as
2 appropriate. All Parties shall continue to afford the material in question the level of protection to
3 which it is entitled under its initial designation until the Court rules on the dispute.
4 5. Reservation of Positions; No Waiver. The Parties agree that the production and use
5 of the Confidential Information in this Action shall not be deemed a waiver of any entitlement to
6 confidential treatment for such information in any other context. Accordingly, the Parties agree:
7 (1) not to assert any such waiver; (2) not to use the information claimed to be Confidential
8 Information to seek disclosure in any other proceeding; and (3) any inadvertent disclosure of the
9 Confidential Information shall not be deemed a waiver of any such entitlement to confidential
10 treatment.
11 6. Production of Discovery Materials Containing Potentially Privileged Information.
12 The production of privileged and/or work-product protected documents or information, whether 13 inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case 14 or in any other federal, state, or governmental proceeding. This Stipulation and Protective Order 15 shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 16 502(d). The producing Party must notify the receiving Party promptly upon discovery that a 17 document containing privileged information has been produced. Within five (5) business days of 18 receiving written notice from the producing Party that privileged and/or work-product documents 19 or information have been produced, the receiving Party shall: (1) return such documents or 20 information and all copies thereof to the producing Party or certify that all such information and 21 any copies have been destroyed and (2) not use such information for any purpose. 22 7. A Non-Party’s Protected Material Sought to be Produced in this Action. The terms 23 of this Stipulation and Protective Order are applicable to any Confidential Information produced 24 by a non-Party in this Action and designated as such pursuant to this Protective Order. Such 25 information produced by a non-Party in connection with this Action shall be fully protected by the 26 remedies and relief provided by this Stipulation and Protective Order. Nothing in these provisions 27 should be construed as prohibiting a non-Party from seeking additional protections. 28 1 8. Termination of Action. The provisions of this Stipulation and Protective Order shall
2 not terminate at the conclusion of this Action. Within sixty (60) days after conclusion of this
3 Action, which includes any final administrative or any final judicial appellate review, the Parties
4 shall return all copies of Confidential Information to the producing Party or non-Party, or certify
5 that all such copies have been destroyed.
6 9. Amendments. This Stipulation and Protective Order is entered without prejudice to
7 the right of any Party or non-Party to apply to the Court at any time, when convenience or necessity
8 requires, for (i) additional protection than this Stipulation and Protective Order provides; or (ii)
9 other amendment of this Stipulation and Protective Order.
10 10. Jurisdiction. This Stipulation and Protective Order shall continue to be binding after
11 termination of this Action. All disputes concerning Confidential Information produced under the
12 protection of this Stipulation and Protective Order shall be resolved by the United States District 13 Court for the Eastern District of California.
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Dated: March 17, 2023 Respectfully submitted,
2 /s/ Michael Shipley 3 MICHAEL SHIPLEY (Cal. Bar # 233674) KIRKLAND & ELLIS LLP 4 555 South Flower Street Los Angeles, CA 90071 5 (213) 680-8348
6 ALEXANDRA I. RUSSELL (pro hac vice) 7 KIRKLAND & ELLIS LLP 1301 Pennsylvania Avenue NW 8 Washington, DC 20004 (202) 389-5258 9 alexandra.russell@kirkland.com
10 JAY P. LEFKOWITZ (pro hac vice) 11 KIRKLAND & ELLIS LLP 601 Lexington Avenue 12 New York, NY 10022 (212) 446-4800 13 lefkowitz@kirkland.com
14 Counsel for Plaintiff 15 ROB BONTA 16 Attorney General of California EMILIO VARANINI 17 KARLI EISENBERG Supervising Deputy Attorneys General 18 19 /s/ David Houska DAVID HOUSKA 20 Deputy Attorney General
21 Attorneys for Defendant Rob Bonta, in his official capacity as Attorney General of 22 the State of California 23 24 25 26 27 28 1 ORDER
2 IT IS HEREBY ORDERED that the parties’ stipulation is granted.
3 IT IS FURTHER ORDERED THAT:
4 1. Requests to seal documents shall be made by motion before the same judge who will
5 decide the matter related to that request to seal.
6 2. The designation of documents (including transcripts of testimony) as confidential
7 pursuant to this order does not automatically entitle the parties to file such a document with the
8 court under seal. Parties are advised that any request to seal documents in this district is governed
9 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a
10 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a
11 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires
12 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 13 the requested duration, the identity, by name or category, of persons to be permitted access to the 14 document, and all relevant information.” L.R. 141(b). 15 3. A request to seal material must normally meet the high threshold of showing that 16 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 17 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 18 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); 19 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 20 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of 21 certain documents, at any court hearing or trial – such determinations will only be made by the 22 court at the hearing or trial, or upon an appropriate motion. 23 5. With respect to motions regarding any disputes concerning this protective order which 24 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local 25 Rule 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex 26 parte basis or on shortened time. 27 //// 28 //// 1 6. The parties may not modify the terms of this Protective Order without the court’s
2 approval. If the parties agree to a potential modification, they shall submit a stipulation and
3 proposed order for the court’s consideration.
4 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement
5 of the terms of this Protective Order after the action is terminated.
6 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is
7 hereby DISAPPROVED.
8 DATED: March 22, 2023 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 9
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28