Zetz v. Boston Scientific Corporation

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 AUTUMN ZETZ, et al., Case No. 1:19-cv-00451-AWI-SAB

12 Plaintiffs, ORDER ENTERING STIPULATED PROTECTIVE ORDER 13 v. (ECF No. 45) 14 BOSTON SCIENTIFIC CORP., 15 Defendant.

16 17 STIPULATED CONFIDENTIALITY AGREEMENT 18 I. SCOPE OF PROTECTIVE ORDER 19 Plaintiffs Autumn Zetz and Eric Zetz (collectively “Plaintiffs”) and Defendant Boston 20 Scientific Corporation (“Defendant”) hereby enter into the following Stipulated Confidentiality 21 Agreement (“Agreement”) and state as follows: 22 The parties acknowledge that certain documents and information may be sought, 23 produced, or exhibited by and between the parties and non-parties in this proceeding (the 24 “Proceeding”) and that some of these documents may relate to sensitive information which the 25 party or non-party making the production deems confidential in accordance with the rules and 26 standards of the Court. Discovery in this case may involve production of confidential, 27 proprietary, and private information for which special protection from public disclosure and from any purpose other than prosecuting litigation would be warranted. Therefore, it has been agreed 1 by the parties to the Proceeding, through their respective counsel, that to expedite the flow of 2 discovery material and to preserve the confidentiality of certain documents and information, a 3 stipulated confidentiality agreement should be entered. By stipulating to this Agreement, the 4 parties have agreed to be bound by its terms and to request its enforcement by the Court as 5 necessary. 6 II. DISCOVERY PHASE 7 1. This Agreement shall govern all documents and electronically stored information 8 (“ESI”), the information contained therein, and all other information produced or disclosed 9 during the Proceeding whether revealed in a document, deposition, other testimony, discovery 10 response or otherwise, by any party, including any non-party, in this Proceeding (the “Producing 11 Party”) to any other party, including any non-party, when same is designated with the procedures 12 set forth herein. This Agreement is binding upon the parties to the Proceeding, including their 13 respective corporate parents, subsidiaries, and affiliates, as well as their respective attorneys, 14 agents, representatives, officers, and employees and others as set forth in this Agreement. This 15 Agreement is also binding on and applies to all non-parties who either produce or receive 16 documents or information in connection with this Proceeding. 17 2. A Producing Party may designate as “CONFIDENTIAL” any material the 18 producing party believes in good faith constitutes or discloses information or that qualifies for 19 protection pursuant to the Federal Rules of Civil Procedure, specifically information that is trade 20 secret or other confidential research, development, or commercial information, and materials 21 that are deemed confidential under Federal Drug Administration ("FDA") regulations and Health 22 Insurance Portability and Accountability Act ("HIPAA") statutes and/or regulations. 23 3. Confidential information may be further designated as “HIGHLY 24 CONFIDENTIAL” if the Defendant produces materials that it believes in good faith would, if 25 disclosed, cause substantial economic harm to the competitive position of the entity from which 26 the information was obtained because it relates to research and development material on a new 27 product that has not been approved or cleared by the FDA or a similar regulatory body or reflects 1 concerning a current or new product. The Plaintiff will inform the Producing Party of its intent 2 to disclose such information to any individual who is currently, or who at any time during the 3 pendency of this litigation becomes, a consultant to a competitor of the Producing Party in the 4 pelvic mesh business, or is a consultant to an entity actively investigating entering such business, 5 and Plaintiff will follow the procedures for disclosure of such materials to such individual as 6 provided in Paragraph II.8 of this Agreement. 7 4. The designation of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” 8 does not include any material, document, or testimony that has been admitted into evidence in 9 any trial without any protections by the trial court. Any document admitted as a trial exhibit or 10 trial testimony for which a trial court has maintained its “CONFIDENTIAL” or “HIGHLY 11 CONFIDENTIAL” designation during trial and that has been sealed or otherwise protected 12 from disclosure by order of the trial court will remain a “CONFIDENTIAL” or “HIGHLY 13 CONFIDENTIAL” absent a separate order of the Court in this matter. 14 5. Challenges to Designations or Redacted Information: Any party may at any time 15 challenge the redaction or the designation of information as CONFIDENTIAL or HIGHLY 16 CONFIDENTIAL to serve a legitimate judicial purpose (e.g., to support a dispositive motion) 17 by providing written notice of its objection to the designating party, or, in the case of a 18 deposition, either on the record at a deposition or in writing later. If, after a timely meet-and- 19 confer process, the parties cannot reach agreement, either the designating party or challenging 20 party may, on reasonable notice, apply for an appropriate ruling from the Court. The disputed 21 material shall continue to be treated as designated, or redacted, until the Court orders otherwise. 22 In any such application concerning a ruling on confidentiality or redacted information, the party 23 claiming the designation of confidentiality or redaction has the burden of establishing that such 24 confidential designation or redaction is proper. 25 6. No person or party subject to this Agreement shall distribute, transmit, or 26 otherwise divulge any material marked CONFIDENTIAL or HIGHLY CONFIDENTIAL, 27 except in accordance with this Agreement. 1 material which is marked CONFIDENTIAL or HIGHLY CONFIDENTIAL, or the contents 2 thereof, may be used by a party, or a party's attorney, expert witness, consultant, or other person 3 to whom disclosure is made, only for the purpose of this action. Nothing contained in this 4 Agreement shall prevent the use of any document, or the contents thereof, at any deposition 5 taken in this litigation. If a party intends to use material that has been marked as HIGHLY 6 CONFIDENTIAL at the deposition of an employee or former employee of a non-producing 7 party in this litigation, then the party shall notify the Producing Party five (5) days in advance of 8 the deposition that it intends to use that category of material. If the parties cannot agree on 9 parameters for usage of the material at the deposition, then the parties will seek the direction of 10 the Court as to the utilization of that category of material in the deposition. 11 8. Access to Confidential Material: If a party or attorney wishes to disclose any 12 document or other material marked CONFIDENTIAL or HIGHLY CONFIDENTIAL, or the 13 contents thereof, to any person retained to work on this action (e.g., expert witness, consultant), 14 the person making the disclosure shall do the following: 15 a. Provide a copy of this Order to the person to whom disclosure is made; 16 b. Inform the person to whom disclosure is made that s/he is bound by this 17 Order; 18 c. Require the person to whom disclosure is made to sign an acknowledgment 19 and receipt of this Order, attached as Exhibit A; 20 d. Instruct the person to whom disclosure is made to return or, in the alternative 21 and with permission of the Producing Party, at the conclusion of this litigation 22 to destroy any document or other material which is marked 23 CONFIDENTIAL or HIGHLY CONFIDENTIAL, including notes or 24 memoranda made from CONFIDENTIAL or HIGHLY CONFIDENTIAL 25 material; 26 e. Maintain a list of persons to whom disclosure was made and the 27 CONFIDENTIAL or HIGHLY CONFIDENTIAL materials which were 1 f. At the conclusion of this litigation, gather the CONFIDENTIAL or 2 HIGHLY CONFIDENTIAL materials, copies thereof, and related notes and 3 memoranda, and return them to the party or attorney who originally disclosed 4 them, or destroy them, providing a certificate of compliance with the terms of 5 this Agreement. 6 9. Disclosure Requirements for HIGHLY CONFIDENTIAL information to 7 Competitor Related Consultants: Prior to disclosure, Plaintiff will inform the Producing Party of 8 its intent to disclose HIGHLY CONFIDENTIAL material to anyone who is currently, or who 9 at any time during the pendency of this litigation becomes, an employee, officer, director or 10 consultant to a competitor (as such individuals are defined in Paragraph II.3 above) in the 11 manner set forth below: 12 a. Give at least ten (10) days notice in writing to counsel for the party who 13 designated such information as HIGHLY CONFIDENTIAL of the intent to 14 so disclose that information, although the disclosing party is not required to 15 identify the intended recipient of such materials. 16 b. Within ten (10) days thereafter, counsel for the parties shall attempt to resolve 17 any disputes between them regarding the production of the HIGHLY 18 CONFIDENTIAL material to the intended individuals. 19 c. If the parties are unable to resolve any dispute regarding such production, 20 within an additional seven (7) days, the party who designated the information 21 in question as HIGHLY CONFIDENTIAL shall file a motion objecting to 22 the proposed disclosure. In making such motion, it shall be the Producing 23 Party's burden to demonstrate good cause for preventing the disclosure. 24 d. If the Court permits disclosure of the material designated as HIGHLY 25 CONFIDENTIAL at issue, the information remains designated as HIGHLY 26 CONFIDENTIAL and the individual receiving such information shall be 27 bound by the requirements of Paragraph II.7. 1 governmental agencies, and certain federal statutes require redaction of certain information prior 2 to production of certain information by Defendant and that Defendant will comply with those 3 requirements and redact such information as directed. Any party challenging information that 4 has been redacted may do so in accordance with Paragraph II.4 of this Agreement, or otherwise 5 in accordance with Federal Rules of Civil Procedure. 6 11. Use of Confidential Material at Depositions: All transcripts and exhibits shall be 7 treated as if designated CONFIDENTIAL for a period of thirty (30) days after the final 8 transcript is available from the court reporter. Counsel for any party may designate during the 9 deposition or during the thirty (30) day period after the final transcript is available from the court 10 reporter any portion of the transcript as CONFIDENTIAL or HIGHLY CONFIDENTIAL by 11 denominating by page and line, and by designating any exhibits, that are to be considered 12 CONFIDENTIAL or HIGHLY CONFIDENTIAL pursuant to the criteria set forth in this 13 Agreement. Such designation shall be communicated to all parties. Transcript portions and 14 exhibits designated in accordance with this paragraph shall be disclosed only in accordance with 15 this Agreement. A party may challenge the CONFIDENTIAL or HIGHLY CONFIDENTIAL 16 designation or portions thereof in accordance with the provisions of Paragraph II.4 above. 17 12. Inadvertent Failure to Properly Designate Confidential Material: Inadvertent 18 production of any document or information without a designation of CONFIDENTIAL or 19 HIGHLY CONFIDENTIAL will not be deemed to waive a party's claim to its confidential 20 nature or estop said party from designating said document or information as CONFIDENTIAL 21 or HIGHLY CONFIDENTIAL at a later date. Disclosure of said document or information by 22 another party prior to such later designation shall not be deemed a violation of the provisions of 23 this Agreement. 24 13. Inadvertent Disclosure of Privileged Documents, “Clawback” Procedure: 25 Inadvertent production of documents or ESI (collectively “Inadvertently Produced Documents”) 26 subject to work-product or attorney-client privilege, or other legal privilege protecting 27 information from discovery, shall not constitute a waiver of the privilege, provided that the 1 party inadvertently produces documents or ESI subject to a claim of privilege, the Producing 2 Party shall, within ten (10) days of the discovery of the inadvertent disclosure, notify the other 3 party in writing of the inadvertent disclosure. The Producing Party may, in the notice, request a 4 “clawback” of the inadvertently disclosed material. The party receiving such clawback notice 5 shall immediately and diligently act to retrieve the Inadvertently Produced Documents, and all 6 copies, including any loaded to databases, and return them to the Producing Party or destroy 7 them as agreed between the parties. All notes or other work product of the receiving party 8 reflecting the contents of such materials shall be destroyed and not used. 9 If the receiving party elects to file a motion as set forth below, the receiving party, subject 10 to the requirements below, may retain possession of the Inadvertently Produced Documents as 11 well as any notes or other work product of the receiving party reflecting the contents of such 12 materials pending the resolution by the Court of the motion below, but the receiving party shall 13 segregate and not use them pending resolution of the motion. If the receiving party's motion is 14 denied, the receiving party shall promptly comply with the immediately preceding provisions of 15 this paragraph. No use shall be made of such Inadvertently Produced Documents during 16 depositions or at trial, nor shall they be disclosed to anyone who was not given access to them 17 prior to the request to return or destroy them, unless otherwise ordered by the Court. 18 The party receiving such Inadvertently Produced Documents may, after receipt of the 19 Producing Party's notice of inadvertent production, move the Court to dispute the claim of 20 privilege. 21 14. Pursuant to Federal Rule of Evidence 502, there is no waiver of privilege or work product 22 protection in this matter or any other matter in any other jurisdiction for any document clawed- 23 back under this clause, or for the subject matter of any such document, whether the privileged 24 document was inadvertently provided following review or as part of a “Quick Peek” production. 25 In the event that any party receives information produced in discovery from any other party that 26 reasonably appears to be Inadvertently Produced Documents, the receiving party shall promptly 27 notify the Producing Party in writing of the apparent inadvertent production. 1 III. PROCEDURE FOR SUBMITTING CONFIDENTIAL DISCOVERY MATERIAL 2 TO THE COURT 3 1. Filing of Confidential Information: If either party desires to file anything with the 4 Court that previously has been designated as Confidential Information, that party must move to 5 file the Confidential Information under seal, unless the Producing Party provides written consent 6 in advance that filing the Confidential Information under seal is unnecessary. Any such motion 7 to file under seal shall be made in accordance with Eastern District of California Local Rule 141. 8 If the motion is granted, and to the extent not inconsistent with Local Rule 141, such documents 9 and materials shall be appropriately labeled and shall also bear the legend “FILED UNDER 10 SEAL” on the cover page of the document. Only those portions of such documents and 11 materials containing or reflecting Confidential Information shall be considered Confidential or 12 Highly Confidential for the purposes of this Agreement. Regardless of any provision in this 13 Agreement to the contrary, a party is not required to file a document under seal if the 14 Confidential Information contained or reflected in the document was so designated solely by that 15 party. 16 2. In motion practice concerning the designation of materials as CONFIDENTIAL 17 or HIGHLY CONFIDENTIAL, the parties shall make every effort to limit the submission of 18 material to include only that information that is in dispute and not extraneous. 19 IV. POST DISCOVERY PHASE 20 1. If any party or attorney wishes to file, or use as an exhibit or as testimonial 21 evidence at a hearing or trial, any CONFIDENTIAL or HIGHLY CONFIDENTIAL material, 22 such party must provide reasonable notice to the Producing Party of the intended use of such 23 information. The parties shall then attempt to resolve the matter of continued confidentiality by 24 either: (a) removing the CONFIDENTIAL or HIGHLY CONFIDENTIAL marking, (b) 25 creating a mutually acceptable redacted version that suffices for purposes of the case, or (c) 26 conferring about methods to avoid or limit public disclosure of such information during 27 testimony. If an amicable resolution proves unsuccessful, the parties may present the issue to the 1 persuasion that the document or material should be withheld from the public record. 2 2. Survival of Agreement: Throughout and after the conclusion of this litigation, 3 including any appeals, the restrictions on communication and disclosure provided for herein shall 4 continue to be binding upon the parties and all other persons to whom CONFIDENTIAL and 5 HIGHLY CONFIDENTIAL material has been communicated or disclosed pursuant to the 6 provisions of this Agreement or order of the Court. 7 3. Return or Destruction of Confidential Material Upon Termination of Litigation: 8 Within sixty (60) days after the final termination of this litigation, each party, upon request of the 9 other party, shall either return to the producing party, or destroy, all CONFIDENTIAL and 10 HIGHLY CONFIDENTIAL material designated by any other party (including any such 11 material disclosed to third persons), except for any attorneys' work-product for the party 12 returning the material, and shall provide certification in writing to opposing counsel if such 13 materials are destroyed. 14 4. Modification of this Agreement: Nothing in this Agreement shall prevent any 15 other party from seeking amendments broadening or restricting the rights of access to or the use 16 of CONFIDENTIAL and/or HIGHLY CONFIDENTIAL material or otherwise modifying this 17 Agreement, and this Agreement may be amended without leave of the Court by the agreement of 18 the undersigned attorneys for the parties in the form of a written stipulation. 19 20 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 Date: June 15, 2020 BOSSIER & ASSOCIATES, PLLC

2 By: /s/ Larissa A. Davis 3 SHEILA M. BOSSIER (E-signature 4 authorized on June 15, 2020) LARISSA A. DAVIS 5 Attorneys for Plaintiffs 6 AUTUMN ZETZ and ERIC ZETZ 7 Date: June 15, 2020 FAEGRE DRINKER BIDDLE & REATH LLP 8

9 By: /s/ Karen M. Firstenberg TARIFA B. LADDON 10 KAREN M. FIRSTENBERG 11 THEODORE E. O'REILLY

12 Attorneys for Defendant BOSTON SCIENTIFIC CORPORATION 13 14 15

23 24 25 26 27 1 2 3 4

11 12 13 14 15 16 17 18

25 26 EXHIBIT A 27 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 AUTUMN ZETZ and ERIC ZETZ, Case No. 1:19-cv-00451-AWI-SAB

4 Hon. Anthony W. Ishii Plaintiffs, Courtroom 2 5 v. STIPULATED 6 CONFIDENTIALITY 7 BOSTON SCIENTIFIC CORPORATION, AGREEMENT

Defendant. 8 Action Filed: January 30, 2019 9 Removal Date: April 12, 2019

10 AGREEMENT TO BE BOUND BY STIPULATED CONFIDENTIALITY AGREEMENT 11 I have read and understand the Stipulated Confidentiality Agreement (“Agreement”) 12 entered by the parties in Autumn Zetz and Eric Zetz v. Boston Scientific Corporation. I 13 understand the terms of the Agreement, I agree to be fully bound by the Agreement, and I hereby 14 submit to the jurisdiction of the United States District Court for the Eastern District of California 15 for purposes of enforcement of the Agreement. 16 I declare under penalty of perjury that the foregoing is true and correct. 17

20 Executed this ________ day of __________________, 20_____. 21

22 By ____________________________________ 23 (signature) 24 25 _____________________________________ 26 (printed name) 27 WOOD 46:40 EAN SADE MUO IO ee OY tv VI te

1 ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The above stipulated protective order is entered; 4 2. The parties are advised that pursuant to the Local Rules of the United States 5 District Court, Eastern District of California, any documents which are to be filed 6 under seal will require a written request which complies with Local Rule 141; 7 3. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a nondispositive motion or compelling 9 reasons for documents attached to a dispositive motion. Pintos v. Pacific 10 Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009); and 11 4. If a party’s request to file Protected Material under seal is denied by the Court, 12 then the previously filed material shall be immediately accepted by the court and 13 become information in the public record and the information will be deemed filed 14 as of the date that the request to file the Protected Information under seal was 15 made. 16 17 IT IS SO ORDERED. OF. ee 1g | Dated: _ June 22, 2020 ;

9 UNITED STATES MAGISTRATE JUDGE

20 21 22 23 24 25 26 27 28