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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`The Scripps Research Institute,
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`v.
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`Illumina, Inc.,
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`Plaintiff,
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`Defendant.
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`
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` Case No.: 16-cv-00661-JLS-BGS
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`ORDER GRANTING JOINT
`MOTION FOR ENTRY OF
`PROTECTIVE ORDER
`
`[ECF No. 48]
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`On July 12, 2017, the parties filed a Joint Motion for Entry of Protective Order and
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`a proposed Protective Order. (ECF Nos. 48, 48-1.) Having reviewed and considered the
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`motion, and good cause appearing, the Court GRANTS the Joint Motion for Entry of
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`Protective Order (ECF No. 48) as follows:
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`
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`The Court recognizes that at least some of the documents and information being
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`sought through discovery in the above-captioned action are, for competitive reasons,
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`normally kept confidential by the parties. The parties have agreed to be bound by the terms
`
`of this Protective Order (“Order”) in the above-titled action.
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`
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`The Materials to be exchanged throughout the course of the litigation between the
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`parties may contain trade secret or other confidential research, technical, cost, price,
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`marketing or other commercial information, as is contemplated by Federal Rule of Civil
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`Procedure 26(c)(7). The purpose of this Order is to protect the confidentiality of such
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`Materials as much as practical during the litigation. THEREFORE:
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`DEFINITIONS
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`1. The term “Confidential Information” will mean and include information contained
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`or disclosed in any Materials, including documents, portions of documents, answers to
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`interrogatories, responses to requests for admissions, trial testimony, deposition testimony,
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`court hearings, expert reports, and transcripts of trial testimony, depositions, and court
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`hearings, including data, summaries, and compilations derived therefrom that is deemed to
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`be Confidential Information by any party to which it belongs.
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`2. The term “Materials” will include, but is not be limited to: documents;
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`correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other
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`material that identify customers or potential customers; price lists or schedules or other
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`matter identifying pricing; minutes; telegrams; emails; letters; statements; cancelled
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`checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations;
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`desk diaries; appointment books; expense accounts; recordings; photographs; motion
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`pictures; compilations from which information can be obtained and translated into
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`reasonably usable form through detection devices; sketches; drawings; notes (including
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`laboratory notebooks and records); reports; instructions; disclosures; other writings;
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`models and prototypes and other physical objects.
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`3. The term “Outside Counsel” will mean outside counsel of record, and other
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`attorneys, paralegals, secretaries, and other support staff employed in the law firms
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`identified below: Nix Patterson & Roach LLP, Thompson & Knight LLP, and Fish &
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`Richardson P.C. The term “In-House Counsel” will mean in-house attorneys LaShanta
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`Racquel Raymond, Douglas Bingham, and Thomas Fitting for The Scripps Research
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`Institute and in-house attorneys Amy McCourt and Roland Schwillinski for Illumina, Inc.
`
`The term “Counsel” will mean both Outside Counsel and In-House Counsel.
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`Case 3:16-cv-00661-JLS-BGS Document 49 Filed 07/18/17 PageID.332 Page 3 of 13
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`GENERAL RULES
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`4. Each party to this litigation that produces or discloses any Materials, answers to
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`interrogatories, responses to requests for admission, trial testimony, deposition testimony,
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`Confidential Information at court hearings, expert reports, and transcripts of trial
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`testimony, depositions, and court hearings, or other information that the producing party
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`believes should be subject to this Protective Order may designate the same as
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`“CONFIDENTIAL”,
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`“CONFIDENTIAL
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`-
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`FOR COUNSEL ONLY”,
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`or
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`“CONFIDENTIAL—OUTSIDE COUNSEL ONLY.”
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`a. Designation as “CONFIDENTIAL”: Any party may designate information as
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`“CONFIDENTIAL” only if, in the good faith belief of such party and its
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`Counsel, the unrestricted disclosure of such information could be potentially
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`prejudicial to the business or operations of such party or of another party to
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`which a duty of confidentiality is owed.
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`b. Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any party
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`may designate information as “CONFIDENTIAL - FOR COUNSEL ONLY”
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`only if, in the good faith belief of such party and its Counsel, the information
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`is among that considered to be most sensitive by the party or of another party
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`to which a duty of confidentiality is owed, including but not limited to trade
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`secret or other confidential research, development, financial or other
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`commercial information.
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`c. Designation as “CONFIDENTIAL—OUTSIDE COUNSEL ONLY”: Any
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`party may designate technical information as “CONFIDENTIAL - OUTSIDE
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`COUNSEL ONLY” only if, in the good faith belief of such party and its
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`Counsel, the information is among that considered to be most sensitive by the
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`party, or of another party to which a duty of confidentiality is owed, including
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`but not limited to trade secret or other confidential research, development, or
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`other commercial and non-commercial information.
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`5. In the event the producing party elects to produce Materials for inspection, no
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`Case 3:16-cv-00661-JLS-BGS Document 49 Filed 07/18/17 PageID.333 Page 4 of 13
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`marking need be made by the producing party in advance of the initial inspection. For
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`purposes of the initial inspection, all Materials produced will be considered as
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`“CONFIDENTIAL - OUTSIDE COUNSEL ONLY” and must be treated as such pursuant
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`to the terms of this Order. Thereafter, upon selection of specified Materials for copying by
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`the inspecting party, the producing party must, within a reasonable time prior to producing
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`those Materials to the inspecting party, mark the copies of those Materials that contain
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`Confidential Information with the appropriate confidentiality marking.
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`6. Whenever a deposition taken on behalf of any party involves a disclosure of
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`Confidential Information of any party:
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`a. the deposition or portions of the deposition must be designated as containing
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`Confidential Information subject to the provisions of this Order; such
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`designation must be made on the record whenever possible, but a party may
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`designate portions of depositions as containing Confidential Information after
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`transcription of the proceedings; A party will have until fourteen (14) days
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`after receipt of the final deposition transcript to inform the other party or
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`parties to the action of the portions of the transcript to be designated
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`“CONFIDENTIAL”, “CONFIDENTIAL - FOR COUNSEL ONLY”, or
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`“CONFIDENTIAL—OUTSIDE COUNSEL ONLY.”
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`b. the disclosing party will have the right to exclude from attendance at the
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`deposition, during such time as the Confidential Information is to be
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`disclosed, any person other than the deponent, Counsel (including their staff
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`and associates), the court reporter, and the person(s) agreed upon pursuant to
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`Paragraphs 8-11 below; and
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`c. the originals of the deposition transcripts and all copies of the deposition must
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`bear the legend “CONFIDENTIAL”, “CONFIDENTIAL - FOR COUNSEL
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`ONLY”, or “CONFIDENTIAL—OUTSIDE COUNSEL ONLY”, as
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`appropriate, and the original or any copy ultimately presented to a court for
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`filing must not be filed unless it can be accomplished under seal, identified as
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`being subject to this Order, and protected from being opened except by order
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`of this Court.
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`7. All
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`Confidential
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`Information
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`designated
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`as
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`“CONFIDENTIAL”,
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`“CONFIDENTIAL - FOR COUNSEL ONLY” , or “CONFIDENTIAL—OUTSIDE
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`COUNSEL ONLY”, must not be disclosed by the receiving party to anyone other than
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`those persons designated within this Order and must be handled in the manner set forth
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`below and, in any event, must not be used for any purpose other than in connection with
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`this litigation, unless and until such designation is removed either by agreement of the
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`parties, or by order of the Court.
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`8. Information designated “CONFIDENTIAL—OUTSIDE COUNSEL ONLY” must
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`be viewed only by Nix Patterson & Roach LLP, Thompson & Knight LLP, and Fish &
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`Richardson P.C., and by experts retained by the Parties (“Expert” or “Experts”) under the
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`conditions set forth in this Paragraph. Information designated “CONFIDENTIAL—
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`OUTSIDE COUNSEL ONLY” must not be viewed by any In-House Counsel listed in
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`Paragraph 3 of this Order. The right of any Expert to receive any Confidential Information
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`will be subject to the advance approval of such Expert by the producing party or by
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`permission of the Court. The party seeking approval of an Expert must provide the
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`producing party with the name and curriculum vitae of the proposed Expert, and an
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`executed copy of the “Acknowledgement To Be Bound by Protective Order” attached as
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`Exhibit A to this Order, in advance of providing any Confidential Information of the
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`producing party to the Expert. Any objection by the producing party to an Expert receiving
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`Confidential Information must be made in writing within ten (10) business days following
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`receipt of the identification of the proposed Expert. Confidential Information may be
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`disclosed to an Expert if the ten (10) business day period has passed and no objection has
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`been made. The approval of Experts must not be unreasonably withheld.
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`9. Information designated “CONFIDENTIAL - FOR COUNSEL ONLY” must be
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`viewed only by Counsel (as defined in Paragraph 3 of this Order) of the receiving party,
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`and by Experts (pursuant to the terms of Paragraph 8 of this Order).
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`10. Information designated “CONFIDENTIAL” must be viewed only by Counsel (as
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`defined in Paragraph 3 of this Order) of the receiving party, by Experts (pursuant to the
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`terms of Paragraph 8 of this Order), and by the additional individuals listed below, provided
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`each such individual has read this Order in advance of disclosure and executed a copy of
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`the “Acknowledgement to be Bound by Protective Order” attached as Exhibit A to this
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`Order, in advance of providing any Confidential Information of the producing party to such
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`persons:
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`a. Executives of the parties who are required to make and/or participate in
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`business strategy decisions with reference to this action;
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`b. Technical personnel of the parties with whom Counsel for the parties find it
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`necessary to consult, in the discretion of such Counsel, in preparation for trial
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`of this action; and
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`c. Stenographic and clerical employees associated with the individuals identified
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`above.
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`Any objection by the producing party to any person described in this Paragraph receiving
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`Confidential Information must be made in writing within ten (10) business days following
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`receipt by the Producing Party of the “Acknowledgement to be Bound” signed by that
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`person. Confidential Information may be disclosed to any person described in this
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`Paragraph if the ten (10) business day period has passed and no objection has been made.
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`The approval of person under this Paragraph must not be unreasonably withheld.
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`11. With respect to material designated “CONFIDENTIAL”, “CONFIDENTIAL –
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`FOR COUNSEL ONLY”, or “CONFIDENTIAL—OUTSIDE COUNSEL ONLY”, any
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`person indicated on the face of the document to be its originator, author or a recipient of a
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`copy of the document, may be shown the same.
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`12. All
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`information which has been designated as “CONFIDENTIAL”,
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`“CONFIDENTIAL
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`- FOR COUNSEL ONLY”, “CONFIDENTIAL—OUTSIDE
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`COUNSEL ONLY” by the producing or disclosing party, and any and all reproductions of
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`that information, must be retained in the custody of the Counsel or Outside Counsel, as
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`appropriate based on the designation, for the receiving party identified in Paragraph 3 of
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`this Order, except that independent experts authorized to view such information under the
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`terms of this Order may retain custody of copies such as are necessary for their participation
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`in this litigation.
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`13. Before any Materials produced in discovery, answers to interrogatories, responses
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`to requests for admissions, deposition transcripts, or other documents which are designated
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`as Confidential Information are filed with the Court for any purpose, the party seeking to
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`file such material must seek permission of the Court to file the material under seal.
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`14. At any stage of these proceedings, any party may object to a designation of the
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`Materials as Confidential Information. The party objecting to confidentiality must notify,
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`in writing, Counsel for the designating party of the objected-to Materials and the grounds
`
`for the objection. If the dispute is not resolved consensually between the parties within
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`seven (7) business days of receipt of such a notice of objections, the objecting party may
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`move the Court for a ruling on the objection. The Materials at issue must be treated as
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`Confidential Information, as designated by the designating party, until the Court has ruled
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`on the objection or the matter has been otherwise resolved.
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`15. All Confidential Information must be held in confidence by those inspecting or
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`receiving it, and must be used only for purposes of this action. Counsel for each party, and
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`each person receiving Confidential Information must take reasonable precautions to
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`prevent the unauthorized or inadvertent disclosure of such information. If Confidential
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`Information is disclosed to any person other than a person authorized by this Order, the
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`party responsible for the unauthorized disclosure must immediately bring all pertinent facts
`
`relating to the unauthorized disclosure to the attention of the other party and, without
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`prejudice to any rights and remedies of the other party, make every effort to prevent further
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`disclosure by the party and by the person(s) receiving the unauthorized disclosure. In
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`addition, the party responsible for the unauthorized disclosure must make all reasonable
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`efforts to recover the Confidential Information from the person(s) to whom unauthorized
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`disclosure was made and take all reasonable efforts to ensure those persons do not retain
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`Case 3:16-cv-00661-JLS-BGS Document 49 Filed 07/18/17 PageID.337 Page 8 of 13
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`any copies of the Confidential Information, including requiring those person(s) to whom
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`unauthorized disclosure was made to read and execute the “Acknowledgement to be
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`Bound” to this Order. Any such Acknowledgments must be provided to the producing
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`party within ten (10) business days of execution by any unauthorized person(s).
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`16. Except as set forth in Paragraphs 17 and 18 below, no party will be responsible to
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`another party for disclosure of Confidential Information under this Order if the information
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`in question is not labeled or otherwise identified as such in accordance with this Order.
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`17. If a party, through inadvertence, produces any Confidential Information without
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`labeling or marking or otherwise designating it as such in accordance with this Order, the
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`designating party may give written notice to the receiving party that the document or thing
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`produced is deemed Confidential Information, and that the document or thing produced
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`should be treated as such in accordance with that designation under this Order. The
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`receiving party must treat the Materials as “Confidential Information” according to the
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`corresponding designation— “CONFIDENTIAL”, “CONFIDENTIAL—FOR COUNSEL
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`ONLY”, or “CONFIDENTIAL—OUTSIDE COUNSEL ONLY”—once the designating
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`party so notifies the receiving party. If the receiving party has disclosed the Materials
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`before receiving the designation, the receiving party must notify the designating party in
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`writing of each such disclosure. Counsel for the parties will agree on a mutually acceptable
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`manner of
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`labeling or marking
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`the
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`inadvertently produced Materials as
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`“CONFIDENTIAL”,
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`“CONFIDENTIAL
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`-
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`FOR COUNSEL ONLY”,
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`or
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`“CONFIDENTIAL—OUTSIDE COUNSEL ONLY.”
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`18. The inadvertent production in discovery of any privileged or otherwise protected or
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`exempted information, as well as the inadvertent production in discovery of information
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`without an appropriate designation of confidentiality, shall not be deemed a waiver or
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`impairment of any claim of privilege or protection, including but not limited to the
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`attorney-client privilege, the protection afforded to work-product Materials or the subject
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`matter thereof, or the confidential nature of any such information, provided that the
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`producing party shall promptly notify the receiving party in writing when inadvertent
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`production is discovered. Upon receiving written notice from the producing party that
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`privileged information or work-product material has been inadvertently produced, all such
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`information, and all copies thereof, including records of all analysis or discussion made in
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`connection with such inadvertently production information, shall be promptly destroyed or
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`returned to Counsel for the producing party and the receiving party shall, within five (5)
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`business days, confirm destruction or return of such information, and not use such
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`information for any purpose until further Order of the Court.
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`19. Nothing within this Order will prejudice the right of any party to object to the
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`production of any Materials on the grounds that the any such Material is protected as
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`privileged or as attorney work product.
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`20. Nothing in this Order will bar Counsel from rendering advice to their clients with
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`respect to this litigation and, in the course thereof, relying upon any information designated
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`as Confidential Information, provided that the contents of the Confidential Information
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`must not be disclosed.
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`21. This Order will be without prejudice to the right of any party to oppose production
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`of any information for lack of relevance or any other ground other than the mere presence
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`of Confidential Information. The existence of this Order must not be used by either party
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`as a basis for discovery that is otherwise improper under the Federal Rules of Civil
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`Procedure.
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`22. Nothing within this Order will be construed to prevent disclosure of Confidential
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`Information if such disclosure is required by law or by Order of the Court.
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`23. Upon final termination of this action, including any and all appeals, Counsel for
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`each party must return all Confidential Information to the party that produced the
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`information, including any copies, excerpts, and summaries of that information, or must
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`destroy same at the option of the receiving party, and must purge all such information from
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`all machine-readable media on which it resides within sixty (60) days. The receiving party
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`shall confirm the destruction of such Confidential Information within sixty (60) days.
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`Notwithstanding the foregoing, Counsel for each party may retain a copy of all pleadings,
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`briefs, memoranda, motions, and other documents filed with the Court that refer to or
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`incorporate Confidential Information, and will continue to be bound by this Order with
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`respect to all such retained information. Further, attorney work product Materials that
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`contain Confidential Information need not be destroyed, but, if they are not destroyed, the
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`person in possession of the attorney work product will continue to be bound by this Order
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`with respect to all such retained information.
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`24. Upon final termination of this action, including any and all appeals, Counsel for each
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`party shall file an ex parte motion for an Order authorizing the destruction and/or return of
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`all “CONFIDENTIAL”, “CONFIDENTIAL
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`- FOR COUNSEL ONLY”, and
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`“CONFIDENTIAL—OUTSIDE COUNSEL ONLY” information to the party that
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`produced such information. Within 21 days of granting of such an Order, the Court shall
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`destroy and/or return to the requesting party all “CONFIDENTIAL”, “CONFIDENTIAL -
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`FOR COUNSEL ONLY”, and “CONFIDENTIAL—OUTSIDE COUNSEL ONLY”
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`information in the Court’s possession.
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`25. The restrictions and obligations within this Order shall survive the termination of
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`this matter until modified, superseded, or terminated on the record by agreement of the
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`26. The restrictions and obligations set forth within this Order will not apply to any
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`(b) the parties agree, or the Court rules, is already public knowledge; (c) the parties agree,
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`or the Court rules, has become public knowledge other than as a result of disclosure by the
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`receiving party, its employees, or its agents in violation of this Order; or (d) has come or
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`will come into the receiving party’s legitimate knowledge independently of the production
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`obtains legitimate possession of that Confidential Information.
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`28. Transmission by email is acceptable for all notification purposes within this Order.
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`29. A non-party or third-party who produces Materials to the Parties in this Action,
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`either voluntarily or pursuant to a subpoena or Court order, may invoke this Order to
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`protect confidential information in the Materials thus produced.
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`30. This Order may be modified by agreement of the parties, subject to approval by the
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`Court.
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`31. The Court may modify the terms and conditions of this Order for good cause, or in
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`the interest of justice, or on its own order at any time in these proceedings. The parties
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`prefer that the Court provide them with notice of the Court's intent to modify the Order and
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`the content of those modifications, prior to entry of such an order.
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`32. Without separate Court order, this Protective Order and the parties’ stipulation does
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`not change, amend, or circumvent any applicable Court rule or local rule.
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`33. No document shall be filed under seal unless Counsel secures a court order allowing
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`the filing of a document under seal. An application to file a document under seal shall be
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`served on opposing Counsel, and on the person or entity that has custody and control of
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`the document, if different from opposing Counsel. If opposing Counsel, or the person or
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`entity who has custody and control of the document, wishes to oppose the application,
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`he/she must contact the chambers of the judge who will rule on the application, to notify
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`the judge’s staff that an opposition to the application will be filed.
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`IT IS SO ORDERED.
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`Dated: July 17, 2017
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`Case 3:16-cv-00661-JLS-BGS Document 49 Filed 07/18/17 PageID.341 Page 12 of 13
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`EXHIBIT A
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`THE SCRIPPS RESEARCH INSTITUTE,
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`Case No. 16-cv-661 JLS (BGS)
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`Plaintiff,
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`ACKNOWLEDGEMENT TO BE
`BOUND BY THE PROTECTIVE
`ORDER
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`Defendant.
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`v.
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`ILLUMINA, INC.,
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`I, ____________________________________ , declare and say that:
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`1.
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`I am employed as ________________________________________ by
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`______________________________________________________________.
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`2.
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`I have read the Protective Order entered in The Scripps Research Institute v.
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`Illumina, Inc., Case No. 16-cv-661 JLS, and have received a copy of the Protective Order.
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`3.
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`I promise that I will use any and all “Confidential,” “Confidential – For
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`Counsel Only,” or “Confidential – Outside Counsel Only” information, as defined in the
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`Protective Order, given to me only in a manner authorized by the Protective Order, and
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`only to assist Counsel in the litigation of this matter.
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`4.
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`I promise that I will not disclose or discuss such “Confidential,” “Confidential
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`– For Counsel Only,” or “Confidential – Outside Counsel Only” information with anyone
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`other than the persons described in Paragraphs 3, 8, 9, and 10 of the Protective Order.
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`16-cv-00661-JLS-BGS
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`Case 3:16-cv-00661-JLS-BGS Document 49 Filed 07/18/17 PageID.342 Page 13 of 13
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`5.
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`I acknowledge that, by signing this agreement, I am subjecting myself to the
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`jurisdiction of the United States District Court for the Southern District of California with
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`respect to enforcement of the Protective Order.
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`6.
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`I understand that any disclosure or use of “Confidential,” “Confidential – For
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`Counsel Only,” or “Confidential – Outside Counsel Only” information in any manner
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`contrary to the provisions of the Protective Order may subject me to sanctions for contempt
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`of court.
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Date: __________________________________
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`_____________________________
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`[Name]
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