EpicentRx, Inc. v. Carter

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EPICENTRX, INC., Case No.: 20cv1058-LAB-LL

12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION FOR ENTRY OF STIPULATED PROTECTIVE 14 COREY A. CARTER, M.D., ORDER WITH MODIFICATIONS 15 Defendant. [ECF No. 46] 16

18 Currently before the Court is the Parties’ “Joint Motion for Entry of [Proposed] 19 Stipulated Protective Order.” ECF No. 46. The Parties represent they have agreed upon the 20 terms of a Protective Order (attached as Exhibit A to this Order) in all respects except for 21 one: whether the Protective Order should contain a “HIGHLY CONFIDENTIAL– 22 ATTORNEYS’ EYES ONLY” designation that would preclude Defendant, Dr. Carter, 23 from directly reviewing certain materials with this designation. Id. at 5-6. For the reasons 24 set forth below, the Court: (1) GRANTS Plaintiff’s request for a provision allowing for 25 materials to be designated “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY”; 26 and (2) GRANTS the Parties’ Joint Motion for Entry of a Stipulated Protective Order with 27 modifications. 28 1 RELEVANT BACKGROUND 2 The instant dispute arises over Section 7.3 of the Parties’ Stipulated Protective 3 Order, which permits the Parties to designate certain items as “HIGHLY 4 CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” Id. at 5. 5 Specifically, Section 7.3 states: 6 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ 7 EYES ONLY” Information or Items. A higher level of 8 protection shall be provided for trade secrets and highly sensitive research, development or commercial documents, testimony, 9 information, or other materials designated “HIGHLY 10 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Unless otherwise ordered by the Court or permitted in writing by the 11 Designating Party, access to material designated “HIGHLY 12 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be restricted to the following individuals: 13 14 (a) Outside Counsel of Record for the Parties as well as employees of said Outside Counsel of Record to whom it is 15 reasonably necessary to disclose the information to assist such 16 attorneys in connection with the Action;

17 (b) Experts (as defined in this Order) used by Outside Counsel 18 of Record for the Parties (1) to whom disclosure is reasonably necessary for this Action; and (2) who have signed the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 (c) court reporters and their staff; 21 22 (d) the Court and its personnel;

23 (e) professional jury or trial consultants, and Professional 24 Vendors to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and 25 Agreement to Be Bound” (Exhibit A); 26 (f) authors and recipients of the Confidential Material; 27 28 1 (g) a fact deposition witness or a trial witness that meets the limitations of Section (f) above; any 30(b)(6) deposition witness 2 presented by the Designating Party; any trial witness, provided 3 that the Designated Material marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” has been or 4 will be offered into evidence, by stipulation of the Designating 5 Party or by ruling by the Court; attorneys for those witnesses; and if disclosure is reasonably necessary, provided: (1) the 6 deposing and/or examining party requests that the witness sign 7 the form attached as Exhibit A hereto; and (2) the witness will not be permitted to keep any confidential information unless they 8 sign the “Acknowledgment and Agreement to Be Bound” 9 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony 10 or exhibits to depositions that reveal Protected Material may be 11 separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective 12 Order; 13 (h) any mediator or settlement officer, and their supporting 14 personnel, mutually agreed upon by the parties engaged in 15 settlement discussions, subject to their agreement to maintain confidentiality to the same degree as required by this Protective 16 Order; and 17 (i) any other person with the prior written consent of the 18 Designating Party or by Order of this Court. 19 20 Ex. A at 9-10.1 21 Plaintiff argues a “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” 22 provision is appropriate in this case because there “may be disclosures and documents” 23 exchanged that “contain highly sensitive trade secrets and proprietary information” which 24 Plaintiff “contends [] would be inappropriate and prejudicial” for Plaintiff to disclose to 25

26 27 1 The Parties also dispute whether all other references to the “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” designation should be included. ECF 28 1 Defendant directly. ECF No. 46 at 5. Plaintiff further argues that the designation does not 2 prevent “counsel from rendering advice to their clients with respect to this litigation” and 3 that “protective orders in trade secrets cases commonly include” an AEO designation. Id. 4 Defendant argues that the inclusion of an AEO provision would be “prejudicial to 5 his ability to advise his attorneys, assist in this case, and make informed decision[s].” Id. 6 at 6. In addition, Defendant argues the provision is “illogical and highly prejudicial” as 7 Defendant would previously have had access to all confidential documents and information 8 in this case as the former CEO of EpicentRx, Inc. Id. 9 ANALYSIS 10 I. Inclusion of AEO Provision 11 Rule 26 authorizes the court, upon a showing of good cause, to issue a protective 12 order to “to protect a party or person from annoyance, embarrassment, oppression, or undue 13 burden or expense[.]” Fed. R. Civ. P. 26(c)(1). 14 As the party seeking the “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES 15 ONLY” designation, Plaintiff bears the burden of establishing good cause for its inclusion. 16 Lindsey v. Elsevier Inc., No. 16-cv-00959-GPC-DHB, 2016 U.S. Dist. LEXIS 111786, at 17 *5 (S.D. Cal. Aug. 19, 2016) (citing Rivera v. NIBCO, Inc., 384 F.3d 822, 827 (9th Cir. 18 2004)). To establish good cause, Plaintiff must demonstrate that disclosure “will cause 19 specific prejudice or harm.” Id. In evaluating prejudice or harm in cases “[w]here trade 20 secrets or other confidential commercial information is involved, the court will balance the 21 risk of disclosure to competitors against the risk that a protective order will impair 22 prosecution or defense of the claims.” Lindsey, 2016 U.S. Dist. LEXIS 111786, at *5-6 23 (quoting Nutratech, Inc. v. Syntech Int’l, Inc., 242 F.R.D. 552, 555 (C.D. Cal. 2007)) 24 (citing Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992)). 25 As an initial matter, the Court notes with disfavor that both of the Parties’ respective 26 briefs were unsupported by any factual evidence or legal authority. Nonetheless, Rule 26(c) 27 “confers broad discretion on the trial court to decide when a protective order is appropriate 28 and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 1 36 (1984). 2 Here, the Court agrees with Plaintiff that this District’s Model Protective Order is an 3 appropriate starting point “setting forth presumptively reasonable conditions regarding the 4 treatment of highly confidential information.” See Barnes & Noble, Inc. v. LSI Corp., No. 5 C 11-02709 EMC (LB), 2012 U.S. Dist. LEXIS 23103, at *6 (N.D. Cal. Feb. 23, 2012). 6 Under this District’s Model Protective Order, Parties may designate information 7 “CONFIDENTIAL – FOR COUNSEL ONLY” only if “in the good faith belief of such 8 party and its counsel” the designated information is “considered to be the most sensitive 9 by the party”—including but not limited to “trade secret or other confidential research, 10 development, financial or other commercial information.” See United States District Court 11 for the Southern District of California Model Protective Order at 3, available at 12 https://www.casd.uscourts.gov/ assets/pdf/forms/Model%20Protective%20Order.pdf. 13 Section 7.3 of the Stipulated Protective Order operates similarly, providing a “higher 14 level of protection” for “trade secrets and highly sensitive research, development or 15 commercial documents, testimony, information or other materials[.]” Ex. A at 10. The 16 Stipulated Protective Order further defines “HIGHLY CONFIDENTIAL— 17 ATTORNEYS’ EYES ONLY” items to be Confidential Information that the designating 18 party contends are “trade secrets and/or commercially sensitive” such that the disclosure 19 “could cause harm that could not be avoided absent such designation.” Id. at 3. Given these 20 similarities, the Court finds Section 7.3 of the Parties’ Stipualted Protective Order is at least 21 presumptively reasonable. 22 The Court is additionally mindful of the context in which this case was brought. See 23 Brown Bag, 960 F.2d at 1470 (courts should examine “the nature of the claims” in making 24 a determination on the propriety of a protective order). Plaintiff commenced this action for 25 (among other things) trade secret misappropriation. See ECF No. 1. Specifically, Plaintiff 26 alleges (among other things) that Defendant is engaged in an effort to “recreate the 27 proprietary formulations of its therapies” and that Defendant “has been in contact with 28 entities in China and elsewhere to secure a deal for these trade secrets and other 1 information.” Id. at 24. 2 Given this context, the Court takes Plaintiff’s concerns seriously and is not 3 persuaded Plaintiff should be prevented from ever designating any materials “HIGHLY 4 CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” As the Ninth Circuit has held, district 5 courts are permitted “broad latitude to grant protective orders to prevent disclosure of 6 materials for many types of information, including, but not limited to, trade secrets or other 7 confidential research, development, or commercial information[.]” Phillips v. GMC, 307 8 F.3d 1206, 1211 (9th Cir. 2002) (emphasis added); see also Pedinol Pharmacal v. Rising 9 Pharm., No. CV 06-2120 (LDW) (AKT), 2007 U.S. Dist. LEXIS 114268, at *4 (E.D.N.Y. 10 Apr. 12, 2007) (“Protective orders that limit access to certain documents to counsel and 11 experts only are commonly entered in litigation involving trade secrets and other 12 confidential research, development, or commercial information.”) (emphasis added). 13 The Court takes equally as seriously Defendant’s concerns an AEO provision would 14 make this litigation more onerous and affect “his ability to advise his attorneys[.]” ECF 15 No. 46 at 6. However, “[a] showing that the protective order increases the difficulty of 16 managing litigation, without more, does not constitute actual prejudice.” Mad Catz 17 Interactive, Inc. v. Razor USA, Ltd., No. 13cv2371-GPC (JLB), 2014 U.S. Dist. LEXIS 18 115896, at *16 (S.D. Cal. Aug. 19, 2014). As Plaintiff correctly notes, an AEO provision 19 would not deny Defendant complete access to AEO designated materials. The documents 20 would still be accessible by Defendant’s experienced attorneys. GXP Capital, LLC v. 21 Argonaut EMS, No. 17cv2283-GPC (BLM), 2018 U.S. Dist. LEXIS 102581, at *10 (S.D. 22 Cal. June 19, 2018) (no showing plaintiff would be prevented from litigating its case where 23 plaintiff had “experienced attorneys and possibly experts who will be able to review and 24 utilize the information.”); see also Intel Corp. v. VIA Techs., Inc., 198 F.R.D. 525, 529 25 (N.D. Cal. 2000) (“[r]equiring a party to rely on its competent outside counsel does not 26 create an ‘undue and unnecessary burden.’”) (citation omitted). 27 Defendant further argues that as the former CEO of EpicentRx, Inc., he would have 28 already had access to any confidential documents in this case, and precluding him from 1 access now would be “illogical and highly prejudicial.” ECF No. 46 at 6. The Stipulated 2 Protective Order however allows AEO designated materials to be shared with the “authors 3 and recipients of the Confidential Material.” Ex. A at 11. Under these terms, Defendant 4 would be allowed to view materials that he either authored or received during his tenure as 5 CEO. The Court finds this carve out reasonable given Defendant’s concerns—and 6 Defendant has provided no authority for the much broader assertion that he is automatically 7 entitled access to any information he could have accessed during his tenure as EpicentRx’s 8 CEO. 9 Finally, Defendant requests that Plaintiff establish “why Dr. Carter should be 10 precluded from seeing” any documents designated AEO before the documents are so 11 designated. ECF No. 46 at 6. This request is unnecessary. The Stipulated Protective Order 12 includes a provision allowing Defendant to challenge an AEO designation if Defendant’s 13 counsel believes such materials were improperly designated or that the designation would 14 unfairly prevent from Defendant from litigating his case. Ex. A at 8. The provision further 15 provides that the burden of persuasion to justify the designation would be on Plaintiff as 16 the designating party. Id. at 8. 17 On balance, the Court finds Defendant’s concerns are adequately addressed by the 18 Stipulated Protective Order and reasonably balanced against Plaintiff’s interests in safe- 19 guarding its trade secrets and other sensitive information in this case. The Court cautions 20 Plaintiff however that the Court expects the AEO designation to be used sparingly and 21 only when absolutely necessary to protect only that matter which is genuinely extremely 22 sensitive such that the disclosure could subject Plaintiff to harm that could not be avoided 23 absent this designation (consistent with the terms set forth in the Stipulated Protective 24 Order). See Ex. A at 3. 25 II. Additional Modifications 26 Per the undersigned Magistrate Judge’s Civil Chamber Rules, the Court further 27 modifies the Parties’ Stipulated Protective Order as follows: 28 • Paragraph 6.1 should be modified to read as follows: “Any Party or Non-Party 1 may challenge a designation of confidentiality at any time that is consistent 2 with the Court’s Scheduling Order and the Chamber Rules of the applicable 3 Judge.” 4 • Paragraph 12.3 should be modified to read as follows: “Filing Under Seal. No 5 document shall be filed under seal, and the Court shall not be required to take 6 any action, without separate prior order by the Judge before whom the hearing 7 or proceedings will take place, after application by the affected party with 8 appropriate notice to opposing counsel. The parties shall follow and abide by 9 applicable law, including Civil Local Rule 79.2, Section 2.j of the Electronic 10 Case Filing Administrative Policies and Procedures, and the chambers rules, 11 with respect to filing documents under seal. A sealing order may issue only 12 upon a request that establishes that the document, or portions thereof, is 13 privileged or otherwise subject to protection under the law. The request must 14 be narrowly tailored to seek sealing only of sensitive personal or confidential 15 information. An unredacted version of the document, identifying the portions 16 subject to the motion to seal, must be lodged with the motion to seal. A 17 redacted version of the document must be publicly filed simultaneously with 18 the motion or ex parte application to file under seal.” 19 • Paragraph 12.8 should be modified to read as follows: “The Court may modify 20 the terms and conditions of this Order for good cause, or in the interest of 21 justice, or for public policy reasons, on its own order at any time in these 22 proceedings. The parties prefer that the Court provide them with notice of the 23 Court's intent to modify the Order and the content of those modifications, prior 24 to entry of such an order.” 25 CONCLUSION 26 As set forth above, it is hereby ORDERED that the Parties’ Stipulated Protective 27 Order (Ex. A) be entered consistent with the terms set forth above. 28 IT IS SO ORDERED. 1 Dated: September 30, 2020 =

3 Honorable Linda Lopez 4 United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

EXHIBIT A 1 Todd A. Boock (SBN 181933) todd@bnsklaw.com 2 BROWN NERI SMITH & KHAN LLP 3 11601 Wilshire Boulevard, Suite 2080 Los Angeles, California 90025 4 Telephone: (310) 593-9890 5 Facsimile: (310) 593-9980

6 Attorneys for Plaintiff/Counter-Defendant 7 EPICENTRX, INC.

8 Guy A. Ricciardulli (SBN 116128) 9 gricciardu@aol.com ATTORNEY AT LAW 10 12396 World Trade Drive, Suite 202 11 San Diego, CA 92128 Telephone: (858) 487-8006 12 Facsimile: (858) 487-8109 13 Attorneys for Defendant/Counterclaimant 14 COREY A. CARTER, M.D. 15 Additional counsel listed on following page 16

UNITED STATES DISTRICT COURT 17 18 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 19 20 EPICENTRX, INC., a Delaware Case No. 3:20-cv-01058-LAB-LL corporation, 21 Hon. Larry Alan Burns 22 Plaintiff, v. [PROPOSED] STIPULATED 23 PROTECTIVE ORDER 24 COREY A. CARTER, M.D., Complaint Filed: June 9, 2020 25 Defendant. 26

27 1 COREY A. CARTER, MD, an 2 individual, 3 Counterclaimant 4 v. 5 EPICENTRX, INC., a Delaware 6 corporation, 7 Counter-Defendant.

8 9

11 James A. Lassart (SBN 40913) Donald R. McKillop (SBN 131685) jlassart@mpbf.com don@mckilloplaw.com 12 Adrian G. Driscoll (SBN 95468) LAW OFFICES OF DONALD R. 13 adriscoll@mpbf.com MCKILLOP MURPHY, PEARSON, BRADLEY 12396 World Trade Drive, Suite 202 14 & FEENEY, P.C. San Diego, CA 92128 15 580 California Street, Suite 1100 Telephone: (858) 487-8118 San Francisco, California 94104 Facsimile: (858) 487-8109 16 Tel.: (415) 788-1900 17 Fax.: (415) 393-8087

18 Attorneys for Plaintiff/Counter-Defendant Attorneys for Defendant/Counterclaimant EPICENTRX, INC. COREY A. CARTER, M.D. 19

20 21 22 23 24 25 26 27 1 The Court recognizes that at least some of the documents and information 2 ("materials") being sought through discovery in the above-captioned action are, for 3 competitive reasons, normally kept confidential by the parties. The parties have 4 agreed to be bound by the terms of this Protective Order (“Order”) in this action. 5 The materials to be exchanged throughout the course of the litigation between 6 the parties may contain trade secret or other confidential research, technical, cost, 7 price, marketing or other commercial information, as is contemplated by Federal 8 Rule of Civil Procedure 26(c)(1)(G). The purpose of this Order is to protect the 9 confidentiality of such materials as much as practical during the litigation. 10 THEREFORE: 11 1. PURPOSES AND LIMITATIONS 12 Discovery in this action is likely to involve production of confidential, 13 proprietary, and/or private information for which special protection from public 14 disclosure and from use for any purpose other than prosecuting this litigation may 15 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 16 enter the following Stipulated Protective Order. The parties acknowledge that this 17 Order does not confer blanket protections on all disclosures or responses to 18 discovery and that the protection it affords from public disclosure and use extends 19 only to the limited information or items that are entitled to confidential treatment 20 under the applicable legal principles. The parties further acknowledge, as set forth 21 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 22 file confidential information under seal; the parties must follow the applicable local 23 rules, including the procedures that must be followed and the standards that will be 24 applied when a party seeks permission from the Court to file material under seal. 25 A. GOOD CAUSE STATEMENT 26 This action involves alleged trade secrets, confidential information, clinical 27 patient data and other valuable research, development, commercial, financial, 1 disclosure and from use for any purpose other than prosecution of this action is 2 warranted. Such confidential and proprietary materials and information may consist 3 of, among other things, confidential business or financial information, information 4 regarding confidential business practices, or other confidential research, 5 development, or commercial information (including information implicating privacy 6 rights of third parties), information otherwise generally unavailable to the public, or 7 which may be privileged or otherwise protected from disclosure under state or 8 federal statutes, court rules, case decisions, or common law. Accordingly, to 9 expedite the flow of information, to facilitate the prompt resolution of disputes over 10 confidentiality of discovery materials, to adequately protect information the parties 11 are entitled to keep confidential, to ensure that the parties are permitted reasonable 12 necessary uses of such material in preparation for and in the conduct of trial, to 13 address their handling at the end of the litigation, and serve the ends of justice, a 14 protective order for such information is justified in this matter. It is the intent of the 15 parties that information will not be designated as confidential for tactical reasons 16 and that nothing be so designated without a good faith belief that it has been 17 maintained in a confidential, non-public manner, and there is good cause why it 18 should not be part of the public record of this case. 19 2. DEFINITIONS 20 2.1 Action: EpicentRx, Inc. v. Corey A. Carter, M.D., et al., Case No. 21 3:20-cv-01058-LAB-LL. 22 2.2 Challenging Party: a Party or Non-Party that challenges the 23 designation of information or items under this Order. 24 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 25 how it is generated, stored or maintained) or tangible things that qualify for 26 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 27 the Good Cause Statement, including, but not limited to, information contained or 1 interrogatories, responses to requests for admissions, trial testimony, deposition 2 testimony, and transcripts of trial testimony and depositions, including data, 3 summaries, and compilations derived therefrom that is deemed to be confidential 4 information by any party to which it belongs. 5 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 6 their support staff). 7 2.5 Designating Party: a Party or Non-Party that designates information or 8 items that it produces in disclosures or in responses to discovery as 9 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 10 ONLY.” 11 2.6 Disclosure or Discovery Material: all items or information, regardless 12 of the medium or manner in which it is generated, stored, or maintained (including, 13 among other things, testimony, transcripts, and tangible things), that are produced or 14 generated in disclosures or responses to discovery in this matter. 15 2.7 Expert: a person with specialized knowledge or experience in a matter 16 pertinent to the litigation who has been retained by a Party or its counsel to serve as 17 an expert witness or as a consultant in this Action. 18 2.8 “HIGHLY CONFIDENTIAL” Information or Items: information or 19 items (regardless of how generated, stored or maintained) or tangible things that 20 contain or reflect sensitive Confidential Information that the designating party 21 contends are trade secrets and/or commercially sensitive, the disclosure of which 22 could cause harm that could not be avoided absent such designation. 23 2.9 House Counsel: attorneys who are employees of a party to this Action. 24 House Counsel does not include Outside Counsel of Record or any other outside 25 counsel. 26 2.10 Non-Party: any natural person, partnership, corporation, association, or 27 other legal entity not named as a Party to this action. 1 2.11 Outside Counsel of Record: attorneys who are not employees of a 2 party to this Action but are retained to represent or advise a party to this Action and 3 have appeared in this Action on behalf of that party or are affiliated with a law firm 4 which has appeared on behalf of that party, and includes support staff. 5 2.12 Party: any party to this Action, including all of its officers, directors, 6 employees, consultants, retained experts, and Outside Counsel of Record (and their 7 support staffs). 8 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 9 Discovery Material in this Action. 10 2.14 Professional Vendors: persons or entities that provide litigation 11 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 12 demonstrations, and organizing, storing, or retrieving data in any form or medium) 13 and their employees and subcontractors. 14 2.15 Protected Material: any Disclosure or Discovery Material that is 15 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 16 ATTORNEYS’ EYES ONLY.” 17 2.16 Receiving Party: a Party that receives Disclosure or Discovery 18 Material from a Producing Party. 19 3. SCOPE 20 The protections conferred by this Stipulation and Order cover not only 21 Protected Material (as defined above), but also (1) any information copied or 22 extracted from Protected Material; (2) all copies, excerpts, summaries, or 23 compilations of Protected Material; and (3) any testimony, conversations, or 24 presentations by Parties or their Counsel that might reveal Protected Material. 25 4. DURATION 26 Even after final disposition of this litigation, the confidentiality obligations 27 imposed by this Order shall remain in effect until a Designating Party agrees 1 to be the later of (1) dismissal of all claims and defenses in this Action, with or 2 without prejudice; and (2) final judgment herein after the completion and exhaustion 3 of all appeals, rehearings, remands, trials, or reviews of this action, including the 4 time limits for filing any motions or applications for extension of time pursuant to 5 applicable law. 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or Non-Party that designates information or items for protection under 9 this Order must take care to limit any such designation to specific material that 10 qualifies under the appropriate standards. To the extent it is practical to do so, the 11 Designating Party must designate for protection only those parts of material, 12 documents, items, or oral or written communications that qualify – so that other 13 portions of the material, documents, items, or communications for which protection 14 is not warranted are not swept unjustifiably within the ambit of this Order. 15 Mass, indiscriminate, or routinized designations are prohibited. Designations 16 that are shown to be clearly unjustified or that have been made for an improper 17 purpose (e.g., to unnecessarily encumber the case development process or to impose 18 unnecessary expenses and burdens on other parties) may expose the Designating 19 Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it 21 designated for protection do not qualify for protection at all or do not qualify for the 22 level of protection initially asserted, that Designating Party must promptly notify all 23 other parties that it is withdrawing the inapplicable designation. 24 5.2 Manner and Timing of Designations. Except as otherwise provided in 25 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 26 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 27 under this Order must be clearly so designated before the material is disclosed or 1 Designation in conformity with this Order requires: 2 (a) for information in documentary form (e.g., paper or electronic 3 documents, but excluding transcripts of depositions or other pretrial or trial 4 proceedings), that the Producing Party affix at a minimum, the legend 5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 6 ONLY” to each page that contains protected material. If only a portion or portions 7 of the material on a page qualifies for protection, the Producing Party also must 8 clearly identify the protected portion(s) (e.g., by making appropriate markings in the 9 margins) and must specify, for each portion, the level of protection asserted. 10 A Party or Non-Party that makes original documents available for inspection 11 need not designate them for protection until after the inspecting Party has indicated 12 which documents it would like copied and produced. During the inspection and 13 before the designation, all of the material made available for inspection shall be 14 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 15 inspecting Party has identified the documents it wants copied and produced, the 16 Producing Party must determine which documents, or portions thereof, qualify for 17 protection under this Order. Then, before producing the specified documents, the 18 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or 19 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that 20 contains Protected Material. 21 (b) for testimony given in a deposition or in other pretrial or trial 22 proceedings, that the Designating Party identify on the record, before the close of 23 the deposition, hearing, or other proceeding, whenever possible, all protected 24 testimony and specify the level of protection being asserted. 25 (1) However, a party may designate portions of depositions as 26 containing Protected Material after transcription of the proceedings. A Designating 27 Party will have until fourteen (14) days after receipt of the deposition transcript to 1 designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – ATTORNEYS’ 2 EYES ONLY.” 3 (2) The use of a document as an exhibit at a deposition shall 4 not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Transcripts containing 6 Protected Material shall have an obvious legend on the title page that the transcript 7 contains Protected Material, and the title page shall be followed by a list of all pages 8 (including line numbers as appropriate) that have been designated as Protected 9 Material and the level of protection being asserted by the Designating Party. The 10 Designating Party shall inform the court reporter of these requirements. 11 (3) The Designating Party will have the right to exclude from 12 attendance at the deposition, during such time as the confidential information is to 13 be disclosed, any person other than the deponent, counsel (including their staff and 14 associates), the court reporter, and the person(s) agreed upon pursuant to paragraphs 15 7.2 and 7.3 below. 16 (4) The originals of the deposition transcripts and all copies of 17 the deposition must bear the legend "CONFIDENTIAL" or "HIGHLY 18 CONFIDENTIAL – ATTORNEYS’ EYES ONLY," as appropriate, and the original 19 or any copy ultimately presented to a court for filing must not be filed unless it can 20 be accomplished under seal, identified as being subject to this Order, and protected 21 from being opened except by order of this Court. 22 (c) for information produced in some form other than documentary 23 and for any other tangible items, that the Producing Party affix in a prominent place 24 on the exterior of the container or containers in which the information is stored the 25 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 26 EYES ONLY.” If only a portion or portions of the information warrants protection, 27 the Producing Party, to the extent practicable, shall identify the protected portion(s). 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 2 failure to designate qualified information or items does not, standing alone, waive 3 the Designating Party’s right to secure protection under this Order for such material. 4 Upon timely correction of a designation, the Receiving Party must make reasonable 5 efforts to assure that the material is treated in accordance with the provisions of this 6 Order. 7 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 9 designation of confidentiality at any time that is consistent with the Court’s 10 Scheduling Order. 11 6.2 Meet and Confer. The Challenging Party objecting to confidentiality 12 must notify, in writing, counsel for the Designating Party of the objected-to materials 13 and the grounds for the objection. If the dispute is not resolved consensually between 14 the parties within seven (7) days of receipt of such a notice of objections, the 15 Challenging Party may move the Court for a ruling on the objection. The materials 16 at issue must be treated as confidential information, as designated by the designating 17 party, until the Court has ruled on the objection or the matter has been otherwise 18 resolved. 19 6.3. The burden of persuasion in any such challenge proceeding shall be on 20 the Designating Party. Frivolous challenges, and those made for an improper purpose 21 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 22 expose the Challenging Party to sanctions. Unless the Designating Party has waived 23 or withdrawn the confidentiality designation, all parties shall continue to afford the 24 materials in question the level of protection to which it is entitled under the Producing 25 Party’s designation until the Court rules on the challenge. 26 7. ACCESS TO AND USE OF PROTECTED MATERIAL 27 7.1 Basic Principles. A Receiving Party may use Protected Material that is 1 Action only for prosecuting, defending, or attempting to settle this Action. Such 2 Protected Material may be disclosed only to the categories of persons and under the 3 conditions described in this Order. When the Action has been terminated, a 4 Receiving Party must comply with the provisions of section 13 below (FINAL 5 DISPOSITION). 6 Protected Material must be stored and maintained by a Receiving Party at a 7 location and in a secure manner that ensures that access is limited to the persons 8 authorized under this Order. 9 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless 10 otherwise ordered by the court or permitted in writing by the Designating Party, a 11 Receiving Party may disclose any information or item designated 12 “CONFIDENTIAL” only to: 13 (a) The Receiving Party’s Outside Counsel of Record in this Action, 14 as well as employees of said Outside Counsel of Record to whom it is reasonably 15 necessary to disclose the information for this Action; 16 (b) the officers, directors, and employees (including House Counsel) 17 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 18 (c) Experts (as defined in this Order) of the Receiving Party to 19 whom disclosure is reasonably necessary for this Action and who have signed the 20 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 21 (d) the Court and its personnel; 22 (e) court reporters and their staff; 23 (f) professional jury or trial consultants, mock jurors, and 24 Professional Vendors to whom disclosure is reasonably necessary for this Action 25 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 26 A); 27 (g) the author or recipient of a document containing the information 1 (h) during their depositions, witnesses, and attorneys for witnesses, 2 in the Action to whom disclosure is reasonably necessary provided: (1) the 3 deposing party requests that the witness sign the form attached as Exhibit A hereto; 4 and (2) they will not be permitted to keep any confidential information unless they 5 sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 6 otherwise agreed by the Designating Party or ordered by the court. Pages of 7 transcribed deposition testimony or exhibits to depositions that reveal Protected 8 Material may be separately bound by the court reporter and may not be disclosed to 9 anyone except as permitted under this Stipulated Protective Order; 10 (i) any mediator or settlement officer, and their supporting 11 personnel, mutually agreed upon by any of the parties engaged in settlement 12 discussions; and 13 (j) any other person with the prior written consent of the 14 Designating Party or by Order of this Court. 15 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 16 ONLY” Information or Items. A higher level of protection shall be provided for 17 trade secrets and highly sensitive research, development or commercial documents, 18 testimony, information, or other materials designated “HIGHLY CONFIDENTIAL 19 – ATTORNEYS’ EYES ONLY.” Unless otherwise ordered by the Court or 20 permitted in writing by the Designating Party, access to material designated 21 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be restricted to 22 the following individuals: 23 (a) Outside Counsel of Record for the Parties as well as employees 24 of said Outside Counsel of Record to whom it is reasonably necessary to disclose 25 the information to assist such attorneys in connection with the Action; 26 (b) Experts (as defined in this Order) used by Outside Counsel of 27 Record for the Parties (1) to whom disclosure is reasonably necessary for this 1 Action; and (2) who have signed the “Acknowledgment and Agreement to Be 2 Bound” (Exhibit A); 3 (c) court reporters and their staff; 4 (d) the Court and its personnel; 5 (e) professional jury or trial consultants, and Professional Vendors to 6 whom disclosure is reasonably necessary for this Action and who have signed the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (f) authors and recipients of the Confidential Material; 9 (g) a fact deposition witness or a trial witness that meets the limitations 10 of Section (f) above; any 30(b)(6) deposition witness presented by the Designating 11 Party; any trial witness, provided that the Designated Material marked “HIGHLY 12 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” has been or will be offered into 13 evidence, by stipulation of the Designating Party or by ruling by the Court; attorneys 14 for those witnesses; and if disclosure is reasonably necessary, provided: (1) the 15 deposing and/or examining party requests that the witness sign the form attached as 16 Exhibit A hereto; and (2) the witness will not be permitted to keep any confidential 17 information unless they sign the “Acknowledgment and Agreement to Be Bound” 18 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the 19 court. Pages of transcribed deposition testimony or exhibits to depositions that 20 reveal Protected Material may be separately bound by the court reporter and may 21 not be disclosed to anyone except as permitted under this Stipulated Protective 22 Order; 23 (h) any mediator or settlement officer, and their supporting personnel, 24 mutually agreed upon by the parties engaged in settlement discussions, subject to 25 their agreement to maintain confidentiality to the same degree as required by this 26 Protective Order; and 27 (i) any other person with the prior written consent of the Designating 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation 4 that compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 6 ONLY,” that Party must: 7 (a) promptly notify in writing the Designating Party. Such notification 8 shall include a copy of the subpoena or court order; 9 (b) promptly notify in writing the party who caused the subpoena or order 10 to issue in the other litigation that some or all of the material covered by the 11 subpoena or order is subject to this Protective Order. Such notification shall include 12 a copy of this Stipulated Protective Order; and 13 (c) cooperate with respect to all reasonable procedures sought to be 14 pursued by the Designating Party whose Protected Material may be affected. 15 If the Designating Party timely seeks a protective order, the Party served with 16 the subpoena or Court Order shall not produce any information designated in this 17 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 18 EYES ONLY” before a determination by the Court from which the subpoena or 19 order issued, unless the Party has obtained the Designating Party’s permission. The 20 Designating Party shall bear the burden and expense of seeking protection in that 21 Court of its confidential material, and nothing in these provisions should be 22 construed as authorizing or encouraging a Receiving Party in this Action to disobey 23 a lawful directive from another court. 24 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 25 PRODUCED IN THIS LITIGATION 26 (a) The terms of this Order are applicable to information produced by a 27 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 1 Non-Parties in connection with this litigation is protected by the remedies and relief 2 provided by this Order. Nothing in these provisions should be construed as 3 prohibiting a Non-Party from seeking additional protections. 4 (b) In the event that a Party is required, by a valid discovery request, to 5 produce a Non-Party’s confidential information in its possession, and the Party is 6 subject to an agreement with the Non-Party not to produce the Non-Party’s 7 confidential information, then the Party shall: 8 (1) promptly notify in writing the Requesting Party and the Non- 9 Party that some or all of the information requested is subject to a confidentiality 10 agreement with a Non-Party; 11 (2) promptly provide the Non-Party with a copy of the Stipulated 12 Protective Order in this Action, the relevant discovery request(s), and a reasonably 13 specific description of the information requested; and 14 (3) make the information requested available for inspection by the 15 Non-Party, if requested. 16 (c) If the Non-Party fails to seek a protective order from this court within 17 fourteen (14) days of receiving the notice and accompanying information, the 18 Receiving Party may produce the Non-Party’s confidential information responsive 19 to the discovery request. If the Non-Party timely seeks a protective order, the 20 Receiving Party shall not produce any information in its possession or control that is 21 subject to the confidentiality agreement with the Non-Party before a determination 22 by the court. Absent a court order to the contrary, the Non-Party shall bear the 23 burden and expense of seeking protection in this court of its Protected Material. 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 26 Protected Material to any person or in any circumstance not authorized under this 27 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 1 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 2 persons to whom unauthorized disclosures were made of all the terms of this Order, 3 and (d) request such person or persons to execute the “Acknowledgment and 4 Agreement to Be Bound” that is attached hereto as Exhibit A. 5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 6 PROTECTED MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain 8 inadvertently produced material is subject to a claim of privilege or other protection, 9 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 10 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 11 procedure may be established in an e-discovery order that provides for production 12 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 13 (e), insofar as the parties reach an agreement on the effect of disclosure of a 14 communication or information covered by the attorney-client privilege or work 15 product protection, the parties may incorporate their agreement in the stipulated 16 protective order submitted to the court. 17 12. MISCELLANEOUS 18 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 19 person to seek its modification by the Court in the future. 20 12.2 Right to Assert Other Objections. By stipulating to the entry of this 21 Protective Order no Party waives any right it otherwise would have to object to 22 disclosing or producing any information or item on any ground, including, but not 23 limited to, the attorney-client privilege and work product doctrine, not addressed in 24 this Stipulated Protective Order. Similarly, no Party waives any right to object on 25 any ground to use in evidence of any of the material covered by this Protective 26 Order. 27 12.3. Filing Protected Material In Court. Before any Protected Material, 1 interrogatories, responses to requests for admissions, deposition transcripts, or other 2 documents which are designated as CONFIDENTIAL or HIGHLY 3 CONFIDENTIAL – ATTORENYS EYES ONLY are filed with the Court for any 4 purpose, the party seeking to file such material must seek permission of the Court to 5 file the material under seal. The filing party must comply with this Court’s Local 6 Rules and the Federal Rules of Civil Procedure for that purpose. If a Party’s request 7 to file Protected Material under seal is denied by the court, then the Receiving Party 8 may file the information in the public record, unless otherwise instructed by the 9 Court. 10 12.4 The restrictions and obligations set forth within this order will not 11 apply to any information that: (a) the parties agree should not be designated 12 confidential information; (b) the parties agree, or the Court rules, is already public 13 knowledge; (c) the parties agree, or the Court rules, has become public knowledge 14 other than as a result of disclosure by the receiving party, its employees, or its 15 agents in violation of this Order; or (d) has come or will come into the receiving 16 party's legitimate knowledge independently of the production by the designating 17 party. Prior knowledge must be established by pre-production documentation. 18 12.5 The restrictions and obligations within this order will not be deemed to 19 prohibit discussions of any confidential information with anyone if that person 20 already has or obtains legitimate possession of that information. 21 12.6 Transmission by email or some other currently utilized method of 22 transmission is acceptable for all notification purposes within this Order. 23 12.7 This Order may be modified by agreement of the parties, subject to 24 approval by the Court. 25 12.8 The Court may modify the terms and conditions of this Order for good 26 cause, or in the interest of justice, or on its own order at any time in these 27 proceedings. The parties prefer that the Court provide them with notice of the 1 entry of such an order. 2 13. FINAL DISPOSITION 3 After the final disposition of this Action, as defined in paragraph 4, within 4 sixty (60) days of a written request by the Designating Party, each Receiving Party 5 must return all Protected Material to the Producing Party or destroy such material. 6 As used in this subdivision, “all Protected Material” includes all copies, abstracts, 7 compilations, summaries, and any other format reproducing or capturing any of the 8 Protected Material. Whether the Protected Material is returned or destroyed, the 9 Receiving Party must submit a written certification to the Producing Party (and, if 10 not the same person or entity, to the Designating Party) by the sixty (60) day 11 deadline that (1) identifies (by category, where appropriate) all the Protected 12 Material that was returned or destroyed and (2) affirms that the Receiving Party has 13 not retained any copies, abstracts, compilations, summaries or any other format 14 reproducing or capturing any of the Protected Material. Notwithstanding this 15 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 16 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 17 deposition and trial exhibits, expert reports, attorney work product, and consultant 18 and expert work product, even if such materials contain Protected Material. Any 19 such archival copies that contain or constitute Protected Material remain subject to 20 this Protective Order as set forth in Section 4 (DURATION). 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 14. VIOLATION 2 Any violation of this Order may be punished by any and all appropriate 3 measures including, without limitation, contempt proceedings and/or monetary 4 sanctions. 5 6 I, Todd A. Boock, am the ECF user whose user ID and password authorized 7 the filing of this document. Pursuant to this Section 2(f)(4) of the Electronic Case 8 Filing Administrative Policies and Procedures Manual of the Southern District of 9 California, I attest that all signatories to this document have concurred and 10 authorized this filing. 11 12 Dated: September 21, 2020 Respectfully submitted,

14 ____/s/ Todd A. Boock________ Todd A. Boock (SBN 181933) 15 todd@bnsklaw.com 16 BROWN, NERI, SMITH & KHAN LLP 11601 Wilshire Boulevard, Suite 2080 17 Los Angeles, California 90025 18 James A. Lassart (SBN 40913) 19 jlassart@mpbf.com 20 Adrian G. Driscoll (SBN 95468) adriscoll@mpbf.com 21 MURPHY, PEARSON, BRADLEY & 22 FEENEY, P.C. 580 California Street, Suite 1100 23 San Francisco, California 94104 24 Attorneys for Plaintiff/Counter-Defendant 25 EPICENTRX, INC. 26 ____/s/ Guy A. Ricciardulli_______ 27 Guy A. Ricciardulli (SBN 116128) 1 gricciardu@aol.com ATTORNEY AT LAW 2 12396 World Trade Center Drive, Suite 202 3 San Diego, California 92128

4 Donald R. McKillop (SBN 131685) 5 don@mckilloplaw.com LAW OFFICES OF DONALD R. 6 MCKILLOP 7 12396 World Trade Center Drive, Suite 202 San Diego, California 92128 8

9 Attorneys for Defendant/Counter-Claimant COREY A. CARTER, M.D. 10

13 SO ORDERED. 14

16 Dated: ____________________ _________________________________ 17 Hon. Linda Lopez 18 19 20 21 22 23 24 25 26 27 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, __________________________________ [print or type full name], of 5 __________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Southern District of California 8 on __________ [date] in the case of EpicentRx, Inc. v. Corey A. Carter, M.D., et al., 9 Case No. 3:20-cv-01058-LAB-LL. I agree to comply with and to be bound by all 10 the terms of this Stipulated Protective Order and I understand and acknowledge that 11 failure to so comply could expose me to sanctions and punishment in the nature of 12 contempt. I solemnly promise that I will not disclose in any manner any 13 information or item that is subject to this Stipulated Protective Order to any person 14 or entity except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Southern District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint _________________________ [print or 19 type full name] of ______________________________ [print or type full address 20 and telephone number] as my California agent for service of process in connection 21 with this action or any proceedings related to enforcement of this Stipulated 22 Protective Order. 23 Date: ___________________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: _____________________________ 26 Signature: ________________________________ 27 1 CERTIFICATE OF SERVICE 2 I hereby certify that I electronically filed the foregoing with the Clerk of the 3 Court for the United States District Court for the Southern District of California by 4 using the CM/ECF system on September 21, 2020. I further certify that all participants 5 in the case are registered CM/ECF users and that service will be accomplished by the 6 CM/ECF system. 7 I certify under penalty of perjury that the foregoing is true and correct. 8 Executed on September 21, 2020. 9 10 /s/ Todd A. Boock 11 Todd A. Boock 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27