"In re Merit Medical Systems, Inc. Securities Litigation" ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 IN RE MERIT MEDICAL SYSTEMS, INC., Case No. 8:19-cv-02326-DOC-ADS SECURITIES LITIGATION 12 13 STIPULATED PROTECTIVE ORDER 14 Discovery Document: Referred to Magistrate Judge Autumn D. Spaeth 15 16 17 I. PURPOSES AND LIMITATIONS 18 A. Discovery in this action is likely to involve production of confidential, 19 proprietary, or private information for which special protection from public 20 disclosure and from use for any purpose other than prosecuting this litigation 21 may be warranted. Accordingly, the parties hereby stipulate to and petition the 22 Court to enter the following Stipulated Protective Order. The parties 23 acknowledge that this Order does not confer blanket protections on all 24 disclosures or responses to discovery and that the protection it affords from 1 public disclosure and use extends only to the limited information or items that 2 are entitled to confidential treatment under the applicable legal principles. The 3 parties further acknowledge, as set forth in Section XIII(C), below, that this 4 Stipulated Protective Order does not entitle them to file confidential information 5 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed 6 and the standards that will be applied when a party seeks permission from the 7 Court to file material under seal. 8 II. GOOD CAUSE STATEMENT 9 A. This action is likely to involve trade secrets, customer and pricing lists 10 and other valuable research, development, commercial, financial, technical 11 and/or proprietary information for which special protection from public 12 disclosure and from use for any purpose other than prosecution of this action is 13 warranted. Such confidential and proprietary materials and information consist 14 of, among other things, confidential business or financial information, 15 information regarding confidential business practices, or other confidential 16 research, development, or commercial information (including information 17 implicating privacy rights of third parties), information otherwise generally 18 unavailable to the public, or which may be privileged or otherwise protected 19 from disclosure under state or federal statutes, court rules, case decisions, or 20 common law. Accordingly, to expedite the flow of information, to facilitate the 21 prompt resolution of disputes over confidentiality of discovery materials, to 22 adequately protect information the parties are entitled to keep confidential, to 23 ensure that the parties are permitted reasonable necessary uses of such material 24 in preparation for and in the conduct of trial, to address their handling at the 1 end of the litigation, and serve the ends of justice, a protective order for such 2 information is justified in this matter. It is the intent of the parties that 3 information will not be designated as confidential for tactical reasons and that 4 nothing be so designated without a good faith belief that it has been maintained 5 in a confidential, non-public manner, and there is good cause why it should not 6 be part of the public record of this case. 7 III. DEFINITIONS 8 A. Action: In re Merit Medical Systems, Inc. Securities Litigation, 8:19-cv- 9 02326-DOC-ADS. 10 B. Challenging Party: A Party or Non-Party that challenges the designation 11 of information or items under this Order. 12 C. “CONFIDENTIAL” Information or Items: Information (regardless of how 13 it is generated, stored or maintained) or tangible things that qualify for 14 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 15 the Good Cause Statement. 16 D. Counsel: Outside Counsel of Record and House Counsel (as well as their 17 support staff). 18 E. Designating Party: A Party or Non-Party that designates information or 19 items that it produces in disclosures or in responses to discovery as 20 “CONFIDENTIAL.” 21 F. Disclosure or Discovery Material: All items or information, regardless of 22 the medium or manner in which it is generated, stored, or maintained 23 (including, among other things, testimony, transcripts, and tangible things), that 24 1 are produced or generated in disclosures or responses to discovery in this 2 matter. 3 G. Expert: A person with specialized knowledge or experience in a matter 4 pertinent to the litigation who has been retained by a Party or its counsel to 5 serve as an expert witness or as a consultant in this Action. 6 H. House Counsel: Attorneys who are employees of a party to this Action. 7 House Counsel does not include Outside Counsel of Record or any other outside 8 counsel. 9 I. Non-Party: Any natural person, partnership, corporation, association, or 10 other legal entity not named as a Party to this action. 11 J. Outside Counsel of Record: Attorneys who are not employees of a party 12 to this Action but are retained to represent or advise a party to this Action and 13 have appeared in this Action on behalf of that party or are affiliated with a law 14 firm which has appeared on behalf of that party, and includes support staff. 15 K. Party: Any party to this Action, including all of its officers, directors, 16 employees, consultants, retained experts, and Outside Counsel of Record (and 17 their support staffs). 18 L. Producing Party: A Party or Non-Party that produces Disclosure or 19 Discovery Material in this Action. 20 M. Professional Vendors: Persons or entities that provide litigation support 21 services (e.g., photocopying, videotaping, translating, preparing exhibits or 22 demonstrations, and organizing, storing, or retrieving data in any form or 23 medium) and their employees and subcontractors. 24 1 N. Protected Material: Any Disclosure or Discovery Material that is 2 designated as “CONFIDENTIAL.” 3 O. Receiving Party: A Party that receives Disclosure or Discovery Material 4 from a Producing Party. 5 IV. SCOPE 6 A. The protections conferred by this Stipulation and Order cover not only 7 Protected Material (as defined above), but also (1) any information copied or 8 extracted from Protected Material; (2) all copies, excerpts, summaries, or 9 compilations of Protected Material; and (3) any testimony, conversations, or 10 presentations by Parties or their Counsel that might reveal Protected Material. 11 B. Any use of Protected Material at trial shall be governed by the orders of 12 the trial judge. This Order does not govern the use of Protected Material at trial. 13 V. DURATION 14 A. Once a case proceeds to trial, all of the information that was designated as 15 confidential or maintained pursuant to this Protective Order becomes public and 16 will be presumptively available to all members of the public, including the press, 17 unless compelling reasons supported by specific factual findings to proceed 18 otherwise are made to the trial judge in advance of the trial. See Kamakana v. 19 City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) 20 (distinguishing “good cause” showing for sealing documents produced in 21 discovery from “compelling reasons” standard when merits-related documents 22 are part of court record). Accordingly, the terms of this Protective Order do not 23 extend beyond the commencement of the trial. 24 1 B. Even after final disposition of this litigation, the confidentiality 2 obligations imposed by this Order shall remain in effect until a Designating 3 Party agrees otherwise in writing or a court order otherwise directs. Final 4 disposition shall be deemed to be the later of (1) dismissal of all claims and 5 defenses in this Action, with or without prejudice; and (2) final judgment herein 6 after the completion and exhaustion of all appeals, rehearings, remands, trials, 7 or reviews of this Action, including the time limits for filing any motions or 8 applications for extension of time pursuant to applicable law. 9 VI. DESIGNATING PROTECTED MATERIAL 10 A. Exercise of Restraint and Care in Designating Material for Protection 11 1. Each Party or Non-Party that designates information or items for 12 protection under this Order must take care to limit any such designation 13 to specific material that qualifies under the appropriate standards. The 14 Designating Party must designate for protection only those parts of 15 material, documents, items, or oral or written communications that 16 qualify so that other portions of the material, documents, items, or 17 communications for which protection is not warranted are not swept 18 unjustifiably within the ambit of this Order. 19 2. Mass, indiscriminate, or routinized designations are prohibited. 20 Designations that are shown to be clearly unjustified or that have been 21 made for an improper purpose (e.g., to unnecessarily encumber the case 22 development process or to impose unnecessary expenses and burdens on 23 other parties) may expose the Designating Party to sanctions. 24 1 3. If it comes to a Designating Party’s attention that information or 2 items that it designated for protection do not qualify for protection, that 3 Designating Party must promptly notify all other Parties that it is 4 withdrawing the inapplicable designation. 5 B. Manner and Timing of Designations 6 1. Except as otherwise provided in this Order (see, e.g., Section 7 B(2)(b) below), or as otherwise stipulated or ordered, Disclosure or 8 Discovery Material that qualifies for protection under this Order must be 9 clearly so designated before the material is disclosed or produced. 10 2. Designation in conformity with this Order requires the following: 11 a. For information in documentary form (e.g., paper or 12 electronic documents, but excluding transcripts of depositions or 13 other pretrial or trial proceedings), that the Producing Party affix 14 at a minimum, the legend “CONFIDENTIAL” (hereinafter 15 “CONFIDENTIAL legend”), to each page that contains protected 16 material. If only a portion or portions of the material on a page 17 qualifies for protection, the Producing Party also must clearly 18 identify the protected portion(s) (e.g., by making appropriate 19 markings in the margins). 20 b. A Party or Non-Party that makes original documents 21 available for inspection need not designate them for protection 22 until after the inspecting Party has indicated which documents it 23 would like copied and produced. During the inspection and before 24 the designation, all of the material made available for inspection 1 shall be deemed “CONFIDENTIAL.” After the inspecting Party has 2 identified the documents it wants copied and produced, the 3 Producing Party must determine which documents, or portions 4 thereof, qualify for protection under this Order. Then, before 5 producing the specified documents, the Producing Party must affix 6 the “CONFIDENTIAL legend” to each page that contains Protected 7 Material. If only a portion or portions of the material on a page 8 qualifies for protection, the Producing Party also must clearly 9 identify the protected portion(s) (e.g., by making appropriate 10 markings in the margins). 11 c. For testimony given in depositions, that the Designating 12 Party identify the Disclosure or Discovery Material on the record, 13 before the close of the deposition all protected testimony. 14 d. For information produced in form other than document and 15 for any other tangible items, that the Producing Party affix in a 16 prominent place on the exterior of the container or containers in 17 which the information is stored the legend “CONFIDENTIAL.” If 18 only a portion or portions of the information warrants protection, 19 the Producing Party, to the extent practicable, shall identify the 20 protected portion(s). 21 C. Inadvertent Failure to Designate 22 1. If timely corrected, an inadvertent failure to designate qualified 23 information or items does not, standing alone, waive the Designating 24 Party’s right to secure protection under this Order for such material. 1 Upon timely correction of a designation, the Receiving Party must make 2 reasonable efforts to assure that the material is treated in accordance with 3 the provisions of this Order. 4 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 A. Timing of Challenges 6 1. Any party or Non-Party may challenge a designation of 7 confidentiality at any time that is consistent with the Court’s Scheduling 8 Order. 9 B. Meet and Confer 10 1. The Challenging Party shall initiate the dispute resolution process 11 under Local Rule 37.1 et seq. 12 C. The burden of persuasion in any such challenge proceeding shall be on 13 the Designating Party. Frivolous challenges, and those made for an improper 14 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 15 parties) may expose the Challenging Party to sanctions. Unless the Designating 16 Party has waived or withdrawn the confidentiality designation, all parties shall 17 continue to afford the material in question the level of protection to which it is 18 entitled under the Producing Party’s designation until the Court rules on the 19 challenge. 20 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL 21 A. Basic Principles 22 1. A Receiving Party may use Protected Material that is disclosed or 23 produced by another Party or by a Non-Party in connection with this 24 Action only for prosecuting, defending, or attempting to settle this Action. 1 Such Protected Material may be disclosed only to the categories of 2 persons and under the conditions described in this Order. When the 3 Action has been terminated, a Receiving Party must comply with the 4 provisions of Section XIV below. 5 2. Protected Material must be stored and maintained by a Receiving 6 Party at a location and in a secure manner that ensures that access is 7 limited to the persons authorized under this Order. 8 B. Disclosure of “CONFIDENTIAL” Information or Items 9 1. Unless otherwise ordered by the Court or permitted in writing by 10 the Designating Party, a Receiving Party may disclose any information or 11 item designated “CONFIDENTIAL” only to: 12 a. The Receiving Party’s Outside Counsel of Record in this 13 Action, as well as employees of said Outside Counsel of Record to 14 whom it is reasonably necessary to disclose the information for this 15 Action; 16 b. The officers, directors, and employees (including House 17 Counsel) of the Receiving Party to whom disclosure is reasonably 18 necessary for this Action; 19 c. Experts (as defined in this Order) of the Receiving Party to 20 whom disclosure is reasonably necessary for this Action and who 21 have signed the “Acknowledgment and Agreement to Be Bound” 22 (Exhibit A); 23 d. The Court and its personnel; 24 e. Court reporters and their staff; 1 f. Professional jury or trial consultants, mock jurors, and 2 Professional Vendors to whom disclosure is reasonably necessary 3 or this Action and who have signed the “Acknowledgment and 4 Agreement to be Bound” attached as Exhibit A hereto; 5 g. The author or recipient of a document containing the 6 information or a custodian or other person who otherwise 7 possessed or knew the information; 8 h. During their depositions, witnesses, and attorneys for 9 witnesses, in the Action to whom disclosure is reasonably 10 necessary provided: (i) the deposing party requests that the 11 witness sign the “Acknowledgment and Agreement to Be Bound;” 12 and (ii) they will not be permitted to keep any confidential 13 information unless they sign the “Acknowledgment and Agreement 14 to Be Bound,” unless otherwise agreed by the Designating Party or 15 ordered by the Court. Pages of transcribed deposition testimony or 16 exhibits to depositions that reveal Protected Material may be 17 separately bound by the court reporter and may not be disclosed to 18 anyone except as permitted under this Stipulated Protective Order; 19 and 20 i. Any mediator or settlement officer, and their supporting 21 personnel, mutually agreed upon by any of the parties engaged in 22 settlement discussions. 23 24 1 IX. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 2 IN OTHER LITIGATION 3 A. If a Party is served with a subpoena or a court order issued in other 4 litigation that compels disclosure of any information or items designated in this 5 Action as “CONFIDENTIAL,” that Party must: 6 1. Promptly notify in writing the Designating Party. Such notification 7 shall include a copy of the subpoena or court order; 8 2. Promptly notify in writing the party who caused the subpoena or 9 order to issue in the other litigation that some or all of the material 10 covered by the subpoena or order is subject to this Protective Order. Such 11 notification shall include a copy of this Stipulated Protective Order; and 12 3. Cooperate with respect to all reasonable procedures sought to be 13 pursued by the Designating Party whose Protected Material may be 14 affected. 15 B. If the Designating Party timely seeks a protective order, the Party served 16 with the subpoena or court order shall not produce any information designated 17 in this action as “CONFIDENTIAL” before a determination by the Court from 18 which the subpoena or order issued, unless the Party has obtained the 19 Designating Party’s permission. The Designating Party shall bear the burden 20 and expense of seeking protection in that court of its confidential material and 21 nothing in these provisions should be construed as authorizing or encouraging a 22 Receiving Party in this Action to disobey a lawful directive from another court. 23 24 1 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 2 PRODUCED IN THIS LITIGATION 3 A. The terms of this Order are applicable to information produced by a Non- 4 Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should 7 be construed as prohibiting a Non-Party from seeking additional protections. 8 B. In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party 10 is subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 1. Promptly notify in writing the Requesting Party and the Non-Party 13 that some or all of the information requested is subject to a confidentiality 14 agreement with a Non-Party; 15 2. Promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a 17 reasonably specific description of the information requested; and 18 3. Make the information requested available for inspection by the 19 Non-Party, if requested. 20 C. If the Non-Party fails to seek a protective order from this court within 14 21 days of receiving the notice and accompanying information, the Receiving Party 22 may produce the Non-Party’s confidential information responsive to the 23 discovery request. If the Non-Party timely seeks a protective order, the 24 Receiving Party shall not produce any information in its possession or control 1 that is subject to the confidentiality agreement with the Non-Party before a 2 determination by the court. Absent a court order to the contrary, the Non-Party 3 shall bear the burden and expense of seeking protection in this court of its 4 Protected Material. 5 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 A. If a Receiving Party learns that, by inadvertence or otherwise, it has 7 disclosed Protected Material to any person or in any circumstance not 8 authorized under this Stipulated Protective Order, the Receiving Party must 9 immediately (1) notify in writing the Designating Party of the unauthorized 10 disclosures, (2) use its best efforts to retrieve all unauthorized copies of the 11 Protected Material, (3) inform the person or persons to whom unauthorized 12 disclosures were made of all the terms of this Order, and (4) request such person 13 or persons to execute the “Acknowledgment and Agreement to be Bound” that is 14 attached hereto as Exhibit A. 15 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 16 PROTECTED MATERIAL 17 A. When a Producing Party gives notice to Receiving Parties that certain 18 inadvertently produced material is subject to a claim of privilege or other 19 protection, the obligations of the Receiving Parties are those set forth in Federal 20 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 21 whatever procedure may be established in an e-discovery order that provides for 22 production without prior privilege review. Pursuant to Federal Rule of Evidence 23 502(d) and (e), insofar as the parties reach an agreement on the effect of 24 disclosure of a communication or information covered by the attorney-client 1 privilege or work product protection, the parties may incorporate their 2 agreement in the Stipulated Protective Order submitted to the Court. 3 XIII. MISCELLANEOUS 4 A. Right to Further Relief 5 1. Nothing in this Order abridges the right of any person to seek its 6 modification by the Court in the future. 7 B. Right to Assert Other Objections 8 1. By stipulating to the entry of this Protective Order, no Party waives 9 any right it otherwise would have to object to disclosing or producing any 10 information or item on any ground not addressed in this Stipulated 11 Protective Order. Similarly, no Party waives any right to object on any 12 ground to use in evidence of any of the material covered by this Protective 13 Order. 14 C. Filing Protected Material 15 1. A Party that seeks to file under seal any Protected Material must 16 comply with Civil Local Rule 79-5. Protected Material may only be filed 17 under seal pursuant to a court order authorizing the sealing of the specific 18 Protected Material at issue. If a Party's request to file Protected Material 19 under seal is denied by the Court, then the Receiving Party may file the 20 information in the public record unless otherwise instructed by the Court. 21 XIV. FINAL DISPOSITION 22 A. After the final disposition of this Action, as defined in Section V, within 23 sixty (60) days of a written request by the Designating Party, each Receiving 24 Party must return all Protected Material to the Producing Party or destroy such 1 material. As used in this subdivision, “all Protected Material” includes all copies, 2 abstracts, compilations, summaries, and any other format reproducing or 3 capturing any of the Protected Material. Whether the Protected Material is 4 returned or destroyed, the Receiving Party must submit a written certification to 5 the Producing Party (and, if not the same person or entity, to the Designating 6 Party) by the 60 day deadline that (1) identifies (by category, where appropriate) 7 all the Protected Material that was returned or destroyed and (2) affirms that the 8 Receiving Party has not retained any copies, abstracts, compilations, summaries 9 or any other format reproducing or capturing any of the Protected Material. 10 Notwithstanding this provision, Counsel are entitled to retain an archival copy of 11 all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 12 memoranda, correspondence, deposition and trial exhibits, expert reports, 13 attorney work product, and consultant and expert work product, even if such 14 materials contain Protected Material. Any such archival copies that contain or 15 constitute Protected Material remain subject to this Protective Order as set forth 16 in Section V. 17 B. Any violation of this Order may be punished by any and all appropriate 18 measures including, without limitation, contempt proceedings and/or monetary 19 sanctions. 20 21 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 22 23 Dated: July 12, 2021 /s/ Jonathan D. Uslaner Jonathan D. Uslaner (SBN 256898) 24 jonathanu@blbglaw.com 1 Lauren M. Cruz (SBN 299964) lauren.cruz@blbglaw.com 2 BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 3 2121 Avenue of the Stars, Suite 2575 Los Angeles, CA 90067 4 Telephone: (310) 819-3472 5 John J. Rizio-Hamilton (appearing pro hac vice) 6 Johnr@blbglaw.com BERNSTEIN LITOWITZ BERGER & 7 GROSSMANN LLP 1251 Avenue of the Americas 8 New York, New York 10020 Telephone: (212) 554-1400 9 Fax: (212) 554-1444 10 Attorneys for Lead Plaintiff Employees’ Retirement System of the City of Baton Rouge 11 and Parish of East Baton Rouge and Co-Lead Counsel for the Class 12 /s/ David R. Kaplan 13 David R Kaplan (SBN 230144) dkaplan@saxenawhite.com 14 Hani Y. Farah (SBN 307622) 15 hfarah@saxenawhite.com Patrick J. Wooding (SBN 322726) 16 pwooding@saxenawhite.com Saxena White P.A. 17 12750 High Bluff Drive, Suite 475 18 San Diego, CA 92130 Telephone: (858) 997-0860 19 Facsimile: (858) 369-0096 20 Steven B. Singer 21 (pro hac vice forthcoming) ssinger@saxenawhite.com 22 Saxena White P.A. 10 Bank Street, 8th Floor 23 White Plains, NY 10606 Telephone: (914) 437-8551 24 1 Facsimile: (888) 631-3611 Attorneys for Lead Plaintiffs the Atlanta 2 Funds and Co-Lead Counsel for the Class 3 4 Dated: July 12, 2021 /s/ Paul R. Bessette Paul R. Bessette (Bar No. 139675) 5 pbessette@kslaw.com Michael J. Biles (Bar No. 186600) 6 mbiles@kslaw.com Joseph N. Akrotirianakis (Bar No. 197971) 7 jakro@kslaw.com KING & SPALDING LLP 8 633 West Fifth Street, Suite 1600 Los Angeles, CA 90071 9 Tel: (213) 443-4355 10 S.Saliya Subasinghe (pro hac vice) ssubasinghe@kslaw.com 11 KING & SPALDING LLP 500 W. 2nd Street, Suite 1800 12 Austin, TX 78701 Tel: (512) 457-2000 13 Counsel for Defendants 14 15 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 16 17 Dated: July 14, 2021 /s/ Autumn D. Spaeth HONORABLE AUTUMN D. SPAETH 18 United States Magistrate Judge 19 20 21 22 23 24 1 LOCAL RULE 5-4.3.4 CERTIFICATION 2 Pursuant to L.R. 5-4.3.4, I, Jonathan D. Uslaner, attest that all other signatories 3 listed and on whose behalf this filing is submitted have authorized this filing and 4 concur in its consent. 5 By: /s/ Jonathan D. Uslaner Jonathan D. Uslaner 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 3 I, [print or type full name], of 4 [print or type full address], declare under penalty of perjury that I 5 have read in its entirety and understand the Stipulated Protective Order that was issue 6 by the United States District Court for the Central District of California on [DATE] in 7 the case of In re Merit Medical Systems, Inc. Securities Litigation, 8:19-cv-02326-DOC- 8 ADS. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise 11 that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint [print or 18 type full name] of [print or type full address and 19 telephone number] as my California agent for service of process in connection with this 20 action or any proceedings related to enforcement of this Stipulated Protective Order. 21 Date: 22 City and State where sworn and signed: 23 Printed Name: 24 Signature: