Case 8:19-cv-02115-DOC-JDE Document 44 Filed 03/16/20 Page 1 of 37 Page ID #:597
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`SOUTHERN DIVISION
`Case No. 8:19-cv-02115-DOC (JDEx)
`MEDTRONIC, INC.; MEDTRONIC
`PUERTO RICO OPERATIONS
`
`CO.; MEDTRONIC LOGISTICS,
`
`LLC; MEDTRONIC USA, INC.,
`PROTECTIVE ORDER GOVERNING
`
`THE COLLECTION AND PRODUCTION
`Plaintiffs,
`OF DOCUMENTS AND
`
`ELECTRONICALLY STORED
`v.
`INFORMATION
`
`
`AXONICS MODULATION
`[NOTE CHANGES BY THE COURT]
`TECHNOLOGIES, INC.,
`
`
`Judge: Hon. David O. Carter
`Defendant.
`Magistrate Judge: Hon. John D. Early
`
`
`
`Per the parties’ Joint Stipulation (Dkt. 43) and good cause appearing therefor,
`the Court finds and orders as follows.
`
`1. PURPOSE AND LIMITATIONS
`
`Disclosure and discovery activity in this action are likely to involve
`production of confidential, proprietary, or private information for which special
`protection from public disclosure and from use for any purpose other than prosecuting
`this litigation may be warranted. The parties acknowledged that this Order does not
`confer blanket protections on all disclosures or responses to discovery and that the
`protection it affords from public disclosure and use extends only to the limited
`1
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
`
`CASE NO. 8:19-CV-02115-DOC-JDE
`
`
`
`
`Axonics Exhibit 1018
`Axonics, Inc. v. Medtronic, Inc.
`IPR2020-00712
`
`Page 1 of 37
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`Case 8:19-cv-02115-DOC-JDE Document 44 Filed 03/16/20 Page 2 of 37 Page ID #:598
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`information or items that are entitled to confidential treatment under the applicable
`legal principles. The parties further acknowledged, as set forth in Section 14.4, below,
`that this Stipulated Protective Order does not entitle them to file confidential
`information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
`followed and the standards that will be applied when a party seeks permission from
`the court to file material under seal.
`The parties further agreed to the Stipulation Regarding the Collection and
`Production of Documents and Electronically Stored Information set forth in the
`appended Exhibit B regarding the collection and production of documents and
`electronically stored information.
`
`2. DEFINITIONS
`
`2.1. Challenging Party: a Party or Non-Party that challenges the designation
`of information or items under this Order.
`2.2
`“CONFIDENTIAL” Information or Items: information (regardless of
`how it is generated, stored or maintained) or tangible things that qualify for protection
`under Federal Rule of Civil Procedure 26(c).
`2.3 Counsel (without qualifier): Outside Counsel of Record and House
`Counsel (as well as their support staff).
`2.4 Designated House Counsel: House Counsel who seek access to
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this
`matter.
`2.5 Designating Party: a Party or Non-Party that designates information or
`items that it produces in disclosures or in responses to discovery as
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”.
`2.6 Disclosure or Discovery Material: all items or information, regardless of
`the medium or manner in which it is generated, stored, or maintained (including,
`2
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
`
`CASE NO. 8:19-CV-02115-DOC-JDE
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`among other things, testimony, transcripts, and tangible things), that are produced or
`generated in disclosures or responses to discovery in this matter.
`2.7 Expert: a person with specialized knowledge or experience in a matter
`pertinent to the litigation who (1) has been retained by a Party or its counsel to serve
`as an expert witness or as a consultant in this action, (2) is not a past or current
`employee of a Party or of a Party’s competitor, and (3) at the time of retention, is not
`anticipated to become an employee of a Party or of a Party’s competitor.
`2.8
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`Information or Items: extremely sensitive “CONFIDENTIAL” Information or Items,
`disclosure of which to another Party or Non-Party would create a substantial risk of
`serious harm that could not be avoided by less restrictive means.
`2.9
`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:
`extremely sensitive “CONFIDENTIAL” Information or Items representing computer
`code and associated comments and revision histories, disclosure of which to another
`Party or Non-Party would create a substantial risk of serious harm that could not be
`avoided by less restrictive means.
`2.10 House Counsel: attorneys who are employees of a party to this action.
`House Counsel does not include Outside Counsel of Record or any other outside
`counsel.
`2.11 Non-Party: any natural person, partnership, corporation, association, or
`other legal entity not named as a Party to this action.
`2.12 Outside Counsel of Record: attorneys who are not employees of a party
`to this action but are retained to represent or advise a party to this action and have
`appeared in this action on behalf of that party or are affiliated with a law firm which
`has appeared on behalf of that party.
`2.13 Party: any party to this action, including all of its officers, directors,
`employees, consultants, retained experts, and Outside Counsel of Record (and their
`support staffs).
`3
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
`
`CASE NO. 8:19-CV-02115-DOC-JDE
`
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`2.14 Producing Party: a Party or Non-Party that produces Disclosure or
`Discovery Material in this action.
`2.15 Professional Vendors: persons or entities that provide litigation support
`services (e.g., photocopying, videotaping, translating, preparing exhibits or
`demonstrations, and organizing, storing, or retrieving data in any form or medium)
`and their employees and subcontractors.
`2.16 Protected Material: any Disclosure or Discovery Material that is
`designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” or as “HIGHLY CONFIDENTIAL – SOURCE
`CODE.”
`2.17 Receiving Party: a Party that receives Disclosure or Discovery Material
`from a Producing Party
`
`3. SCOPE
`
`The protections conferred by this Order cover not only Protected Material
`(as defined above), but also (1) any information copied or extracted from Protected
`Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
`and (3) any testimony, conversations, or presentations by Parties or their Counsel that
`might reveal Protected Material. However, the protections conferred by this Order do
`not cover the following information: (a) any information that is in the public domain
`at the time of disclosure to a Receiving Party or becomes part of the public domain
`after its disclosure to a Receiving Party as a result of publication not involving a
`violation of this Order, including becoming part of the public record through trial or
`otherwise; and (b) any information known to the Receiving Party prior to the
`disclosure or obtained by the Receiving Party after the disclosure from a source who
`obtained the information lawfully and under no obligation of confidentiality to the
`Designating Party. Any use of Protected Material at trial shall be governed by a
`separate agreement or order.
`
`4
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
`
`CASE NO. 8:19-CV-02115-DOC-JDE
`
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`4. DURATION
`Even after final disposition of this litigation, the confidentiality
`obligations imposed by this Order shall remain in effect until a Designating Party
`agrees otherwise in writing or a court order otherwise directs. Final disposition shall
`be deemed to be the later of (1) dismissal of all claims and defenses in this action,
`with or without prejudice; and (2) final judgment herein after the completion and
`exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
`including the time limits for filing any motions or applications for extension of time
`pursuant to applicable law.
`5. DESIGNATING PROTECTED MATERIAL
`5.1 Exercise of Restraint and Care in Designating Material for
`Protection. Each Party or Non-Party that designates information or items for
`protection under this Order must take care to limit any such designation to specific
`material that qualifies under the appropriate standards. To the extent it is practical to
`do so, the Designating Party must designate for protection only those parts of material,
`documents, items, or oral or written communications that qualify – so that other
`portions of the material, documents, items, or communications for which protection is
`not warranted are not swept unjustifiably within the ambit of this Order.
`Mass, indiscriminate, or routinized designations are prohibited.
`Designations that are shown to be clearly unjustified or that have been made for an
`improper purpose (e.g., to unnecessarily encumber or retard the case development
`process or to impose unnecessary expenses and burdens on other parties) expose the
`Designating Party to sanctions.
`No “Highly Confidential” designation shall be made unless the
`designating party (or non-party from whom discovery is sought) reasonably believes
`in good faith that the designated material comprises or contains competitively
`sensitive information that could be used by the receiving party to obtain a business
`(not legal) advantage over the producing party, including, but not limited to, trade
`5
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
`
`CASE NO. 8:19-CV-02115-DOC-JDE
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`secrets, highly sensitive, non-public technical information, documents disclosing the
`past, present, or intended design, development, configuration, materials, manufacture,
`testing or trial, and the results of such testing or trials, of the products of any Party,
`documents or information related to damages (e.g. sales numbers, profit margins), or
`documents or information related to pending and not yet published patent applications.
`If it comes to a Designating Party’s attention that information or items
`that it designated for protection do not qualify for protection at all or do not qualify for
`the level of protection initially asserted, that Designating Party must promptly notify
`all other parties that it is withdrawing the mistaken designation.
`5.2 Manner and Timing of Designations. Except as otherwise provided
`in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
`stipulated or ordered, Disclosure or Discovery,
`Material that qualifies for protection under this Order must be clearly so
`designated before the material is disclosed or produced.
`Designation in conformity with this Order requires:
`(a) for information in documentary form (e.g., paper or electronic
`documents, but excluding transcripts of depositions or other pretrial or trial
`proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
`CONFIDENTIAL – SOURCE CODE” to each page that contains protected material.
`If only a portion or portions of the material on a page qualifies for protection, the
`Producing Party also must clearly identify the protected portion(s) (e.g., by making
`appropriate markings in the margins) and must specify, for each portion, the level of
`protection being asserted.
`A Party or Non-Party that makes original documents or materials
`available for inspection need not designate them for protection until after the
`inspecting Party has indicated which material it would like copied and produced.
`During the inspection and before the designation, all of the material made available
`6
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
`
`CASE NO. 8:19-CV-02115-DOC-JDE
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`for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY.” After the inspecting Party has identified the documents it wants copied and
`produced, the Producing Party must determine which documents, or portions thereof,
`qualify for protection under this Order. Then, before producing the specified
`documents, the Producing Party must affix the appropriate legend
`(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE) to each page that
`contains Protected Material. If only a portion or portions of the material on a page
`qualifies for protection, the Producing Party also must clearly identify the protected
`portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
`each portion, the level of protection being asserted.
`(b) for testimony given in deposition or in other pretrial or trial
`proceedings, that the Designating Party identify on the record, before the close of the
`deposition, hearing, or other proceeding, all protected testimony and specify the level
`of protection being asserted. When it is impractical to identify separately each portion
`of testimony that is entitled to protection and it appears that substantial portions of the
`testimony may qualify for protection, the Designating Party may invoke on the record
`(before the deposition, hearing, or other proceeding is concluded) a right to have up to
`21 days to identify the specific portions of the testimony as to which protection is
`sought and to specify the level of protection being asserted. Only those portions of the
`testimony that are appropriately designated for protection within the 21 days shall be
`covered by the provisions of this Stipulated Protective Order. Alternatively, a
`Designating Party may specify, at the deposition or up to 21 days afterwards if that
`period is properly invoked, that the entire transcript shall be treated as
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY.”
`
`Parties shall give the other parties notice if they reasonably expect a
`deposition, hearing or other proceeding to include Protected Material so that the other
`7
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
`
`CASE NO. 8:19-CV-02115-DOC-JDE
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`parties can ensure that only authorized individuals who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
`proceedings. The use of a document as an exhibit at a deposition shall not in any way
`affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY.”
`Transcripts containing Protected Material shall have an obvious legend
`on the title page that the transcript contains Protected Material, and the title page shall
`be followed by a list of all pages (including line numbers as appropriate) that have
`been designated as Protected Material and the level of protection being asserted by the
`Designating Party. The Designating Party shall inform the court reporter of these
`requirements. Any transcript that is prepared before the expiration of a 21-day period
`for designation shall be treated during that period as if it had been designated
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
`otherwise agreed. After the expiration of that period, the transcript shall be treated
`only as actually designated.
`(c) for information produced in some form other than documentary and
`for any other tangible items, that the Producing Party affix in a prominent place on the
`exterior of the container or containers in which the information or item is stored the
`legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a portion or
`portions of the information or item warrant protection, the Producing Party, to the
`extent practicable, shall identify the protected portion(s) and specify the level of
`protection being asserted.
`5.3
`Inadvertent Failures to Designate. If timely corrected, an
`inadvertent failure to designate qualified information or items does not, standing
`alone, waive the Designating Party’s right to secure protection under this Order for
`such material. Upon timely correction of a designation, the Receiving Party must
`make reasonable efforts to assure that the material is treated in accordance with the
`8
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
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`CASE NO. 8:19-CV-02115-DOC-JDE
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`provisions of this Order.
`6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
`6.1 Timing of Challenges. Any Party or Non-Party may challenge a
`designation of confidentiality at any time. Unless a prompt challenge to a Designating
`Party’s confidentiality designation is necessary to avoid foreseeable, substantial
`unfairness, unnecessary economic burdens, or a significant disruption or delay of the
`litigation, a Party does not waive its right to challenge a confidentiality designation by
`electing not to mount a challenge promptly after the original designation is disclosed.
`6.2 Meet and Confer. The Challenging Party shall initiate the dispute
`resolution process by providing written notice of each designation it is challenging
`and describing the basis for each challenge. To avoid ambiguity as to whether a
`challenge has been made, the written notice must recite that the challenge to
`confidentiality is being made in accordance with this specific paragraph of the
`Protective Order. The parties shall attempt to resolve each challenge in good faith and
`must begin the process by conferring directly (in voice to voice dialogue; other forms
`of communication are not sufficient) within 14 days of the date of service of notice. In
`conferring, the Challenging Party must explain the basis for its belief that the
`confidentiality designation was not proper and must give the Designating Party an
`opportunity to review the designated material, to reconsider the circumstances, and, if
`no change in designation is offered, to explain the basis for the chosen designation. A
`Challenging Party may proceed to the next stage of the challenge process only if it has
`engaged in this meet and confer process first or establishes that the Designating Party
`is unwilling to participate in the meet and confer process in a timely manner.
`6.3
`Joint Stipulation. Any challenge submitted to the Court shall be via
`a joint stipulation pursuant to Local Civil Rule 37. The burden of persuasion in any
`such challenge proceeding shall be on the Designating Party. Frivolous challenges and
`those made for an improper purpose (e.g., to harass or impose unnecessary expenses
`and burdens on other parties) may expose the Challenging Party to sanctions. Unless
`9
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
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`CASE NO. 8:19-CV-02115-DOC-JDE
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`the Designating Party has waived the confidentiality designation by failing to file a
`motion to retain confidentiality as described above, all parties shall continue to afford
`the material in question the level of protection to which it is entitled under the
`Producing Party’s designation until the court rules on the challenge.
`
`7. ACCESS TO AND USE OF PROTECTED MATERIAL
`7.1 Basic Principles. A Receiving Party may use Protected Material that is
`disclosed or produced by another Party or by a Non-Party in connection with this case
`only for prosecuting, defending, or attempting to settle this litigation. Such Protected
`Material may be disclosed only to the categories of persons and under the conditions
`described in this Order. When the litigation has been terminated, a Receiving Party
`must comply with the provisions of section 15 below (FINAL DISPOSITION).
`Protected Material must be stored and maintained by a Receiving Party at a
`location and in a secure manner1 that ensures that access is limited to the persons
`authorized under this Order.
`7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
`otherwise ordered by the court or permitted in writing by the Designating Party, a
`Receiving Party may disclose any information or item designated “CONFIDENTIAL”
`only to:
`
`(a) the Receiving Party’s Outside Counsel of Record in this action,
`employees and staff of said Outside Counsel of Record, and Professional Vendors to
`whom it is reasonably necessary to disclose the information for this litigation;
`(b) up to 5 total individuals of the Receiving Party, who may be officers,
`directors, and employees (including House Counsel), to whom disclosure is
`reasonably necessary for this litigation and who have signed the “Acknowledgment
`and Agreement to Be Bound” (Exhibit A);
`(c) Experts (as defined in this Order) of the Receiving Party to whom
`
`1 It may be appropriate under certain circumstances to require the Receiving Party to store any electronic
`Protected Material in password-protected form.
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`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
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`CASE NO. 8:19-CV-02115-DOC-JDE
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`disclosure is reasonably necessary for this litigation and who have signed the
`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
`(d) the court and its personnel;
`(e) court reporters and their staff;
`(f) professional jury or trial consultants to whom disclosure is reasonably
`necessary for this litigation and who have signed the “Acknowledgment and
`Agreement to Be Bound” (Exhibit A);
`(g) during their depositions, third-party witnesses in the action to whom
`disclosure is reasonably necessary and who have signed the “Acknowledgment and
`Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
`Party or ordered by the court;
` (h) the author or recipient of a document containing the information or a
`custodian or other person who otherwise possessed or knew the information.
`7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY” Information or Items. Unless otherwise ordered by the court or permitted in
`writing by the Designating Party, a Receiving Party may disclose any information or
`item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only
`to:
`
`(a) the Receiving Party’s Outside Counsel of Record in this action,
`employees and staff of said Outside Counsel of Record, and Professional Vendors to
`whom it is reasonably necessary to disclose the information for this litigation;
`(b) Two Designated House Counsel of the Receiving Party (1) who has
`no involvement in competitive decision-making, (2) to whom disclosure is reasonably
`necessary for this litigation because he or she is directly supervising or overseeing the
`litigation, (3) who has signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A), and (4) as to whom the procedures set forth in paragraph 7.4(a)(1), below,
`have been followed;
`(c) Experts of the Receiving Party (1) to whom disclosure is reasonably
`11
`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
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`CASE NO. 8:19-CV-02115-DOC-JDE
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`Case 8:19-cv-02115-DOC-JDE Document 44 Filed 03/16/20 Page 12 of 37 Page ID #:608
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`necessary for this litigation, (2) who have signed the “Acknowledgment and
`Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in
`paragraph 7.5(a)(2), below, have been followed;
`(d) the court and its personnel;
`(e) court reporters and their staff;
`(f) professional jury or trial consultants2 to whom disclosure is
`reasonably necessary for this litigation and who have signed the “Acknowledgment
`and Agreement to Be Bound” (Exhibit A);
`(g) during their depositions, third-party witnesses in the action to whom
`disclosure is reasonably necessary and who have signed the “Acknowledgment and
`Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
`Party or ordered by the court; and
`(h) the author or recipient of a document containing the information or a
`custodian or other person who otherwise possessed or knew the information.
`7.4 Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE”
`Information or Items. Unless otherwise ordered by the court or permitted in writing
`by the Designating Party, a Receiving Party may disclose any information or item
`designated “HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
`(a) the Receiving Party’s Outside Counsel of Record in this action, employees
`and staff of said Outside Counsel of Record, and Professional Vendors to whom it is
`reasonably necessary to disclose the information for this litigation;
`(b) Experts of the Receiving Party (1) to whom disclosure is reasonably
`necessary for this litigation, (2) who have signed the “Acknowledgment and
`Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in
`paragraph 7.5(a)(2), below, have been followed;
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`2 Alternative: The parties may wish to allow disclosure of information not only to professional jury or trial
`consultants, but also to mock jurors, to further trial preparation. In that situation, the parties may wish to draft
`a simplified, precisely tailored Undertaking for mock jurors to sign.
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`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
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`CASE NO. 8:19-CV-02115-DOC-JDE
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`Case 8:19-cv-02115-DOC-JDE Document 44 Filed 03/16/20 Page 13 of 37 Page ID #:609
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`(c) the court and its personnel;
`(d) court reporters and their staff;
`(e) the author or recipient of a document containing the information or a
`custodian or other person who otherwise possessed or knew the information.
`7.5 Procedures for Approving or Objecting to Disclosure of “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL
`– SOURCE CODE” Information or Items to Designated House Counsel or Experts.
`(a)(1) Unless otherwise ordered by the court or agreed to in writing by
`the Designating Party, a Party that seeks to disclose to Designated House Counsel any
`information or item that has been designated “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make a written
`request to the Designating Party that (1) sets forth the full name of the Designated
`House Counsel and the city and state of his or her residence, and (2) describes the
`Designated House Counsel’s current and reasonably foreseeable future primary job
`duties and responsibilities in sufficient detail to determine if House Counsel is
`involved, or may become involved, in any competitive decision-making.
`(a)(2) Unless otherwise ordered by the court or agreed to in writing by the
`Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order)
`any information or item that has been designated “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
`pursuant to paragraphs 7.3(c) or 10 first must make a written request to the Designating
`Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
`information that the Receiving Party seeks permission to disclose to the Expert, (2) sets
`forth the full name of the Expert and attaches a copy of the Expert’s current resume,
`and to the extent not included in the resume, (a) identifies the Expert’s current
`employer(s); (b) identifies each person or entity from whom the Expert has received
`compensation or funding for work in his or her areas of expertise or to whom the
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`PROTECTIVE ORDER GOVERNING THE COLLECTION AND PRODUCTION OF DOCUMENTS AND
`ELECTRONICALLY STORED INFORMATION
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`CASE NO. 8:19-CV-02115-DOC-JDE
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`Page 13 of 37
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`Case 8:19-cv-02115-DOC-JDE Document 44 Filed 03/16/20 Page 14 of 37 Page ID #:610
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`expert has provided professional services, including in connection with a litigation, at
`any time during the preceding five years,3 and (c) identifies, by name and number of
`the case, filing date, and location of court, any litigation in connection with which the
`Expert has offered expert testimony, including through a declaration, report, or
`testimony at a deposition or trial, during the preceding five years.
`(b) A Party that makes a request and provides the information specified
`in the preceding respective paragraphs may disclose the subject Protected Material to
`the identified Designated House Counsel or Expert unless, within 14 days of
`delivering the request, the Party receives a written objection from the Designating
`Party. Any such objection must set forth in detail the grounds on which it is based.
`(c) A Party that receives a timely written objection must meet and confer
`with the Designating Party (through direct voice to voice dialogue) to try to resolve
`the matter by agreement within seven days of the written objection. If no agreement is
`reached, the Party seeking to make the disclosure to Designated House Counsel or the
`Expert may file a motion in compliance with the Local Rules seeking permission from
`the court to do so. Any such motion must describe the circumstances with specificity,
`set forth in detail the reasons why the disclosure to Designated House Counsel or the
`Expert is reasonably necessary, assess the risk of harm that the disclosure would
`entail, and suggest any additional means that could be used to reduce that risk. In
`addition, any such motion must be accompanied by a competent declaration
`describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and
`the content of the meet and confer discussions) and setting forth the reasons advanced
`by the Designating Party for its refusal to approve the disclosure.
`In any such proceeding, the Party opposing disclosure to Designated House
`Counsel or the Expert shall bear the burden of proving that the risk of harm that the
`
`3 If the Expe