Harpers Pharmacy, Inc. v. Federal Express Corporation ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 HARPER’S PHARMACY, INC. dba Case No: 8:24-cv-00801-FWS-JDE AMERIPHARMA, a California 12 Corporation, 13 STIPULATED PROTECTIVE ORDER Plaintiff, 14 v. 15 FEDEX CORPORATION, a Delaware corporation, FEDERAL EXPRESS 16 CORPORATION, a Delaware 17 corporation, and DOES 2-50, inclusive, 18 Defendants. 19 20 Based on the parties’ Stipulation (Dkt. 26) and for good cause shown, the Court 21 finds and orders as follows. 22 1. PURPOSES AND LIMITATIONS 23 Discovery in this action is likely to involve production of confidential, 24 proprietary or private information for which special protection from public 25 disclosure and from use for any purpose other than pursuing this litigation may be 26 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 27 enter the following Stipulated Protective Order. The parties acknowledge that this 28 1 discovery and that the protection it affords from public disclosure and use extends 2 only to the limited information or items that are entitled to confidential treatment 3 under the applicable legal principles. 4 2. GOOD CAUSE STATEMENT 5 This action is likely to involve or require the exchange of trade secrets, pricing 6 information and other valuable commercial, financial, operational and/or 7 proprietary information for which special protection from public disclosure and 8 from use for any purpose other than prosecution and defense of this action is 9 warranted. Such confidential and proprietary materials and information consist of, 10 among other things, confidential business or financial information, information 11 regarding confidential business practices, or other confidential research, 12 development, or commercial information (including information implicating privacy rights of third parties), information otherwise generally unavailable to the 13 public, or which may be privileged or otherwise protected from disclosure under 14 state or federal statutes, court rules, case decisions, or common law. Accordingly, to 15 expedite the flow of information, to facilitate the prompt resolution of disputes over 16 confidentiality of discovery materials, to adequately protect information the parties 17 are entitled to keep confidential, to ensure that the parties are permitted reasonable 18 necessary uses of such material in preparation for and in the conduct of trial, to 19 address their handling at the end of the litigation, and serve the ends of justice, a 20 protective order for such information is justified in this matter. It is the intent of the 21 parties that information will not be designated as confidential for tactical reasons 22 and that nothing be so designated without a good faith belief that it has been 23 maintained in a confidential, non-public manner, and there is good cause why it 24 should not be part of the public record of this case. 25 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 26 The parties further acknowledge, as set forth in Section 14.3, below, that this 27 Stipulated Protective Order does not entitle them to file confidential information 28 1 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 2 and the standards that will be applied when a party seeks permission from the court 3 to file material under seal. There is a strong presumption that the public has a right 4 of access to judicial proceedings and records in civil cases. In connection with non- 5 dispositive motions, good cause must be shown to support a filing under seal. See 6 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 7 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 8 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 9 stipulated protective orders require good cause showing), and a specific showing of 10 good cause or compelling reasons with proper evidentiary support and legal 11 justification, must be made with respect to Protected Material that a party seeks to 12 file under seal. The parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL does not— without the submission of competent evidence by 13 declaration, establishing that the material sought to be filed under seal qualifies as 14 confidential, privileged, or otherwise protectable—constitute good cause. 15 Further, if a party requests sealing related to a dispositive motion or trial, then 16 compelling reasons, not only good cause, for the sealing must be shown, and the 17 relief sought shall be narrowly tailored to serve the specific interest to be protected. 18 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For 19 each item or type of information, document, or thing sought to be filed or 20 introduced under seal, the party seeking protection must articulate compelling 21 reasons, supported by specific facts and legal justification, for the requested sealing 22 order. Again, competent evidence supporting the application to file documents 23 under seal must be provided by declaration. 24 Any document that is not confidential, privileged, or otherwise protectable in its 25 entirety will not be filed under seal if the confidential portions can be redacted. If 26 documents can be redacted, then a redacted version for public viewing, omitting 27 only the confidential, privileged, or otherwise protectable portions of the document, 28 1 shall be filed. Any application that seeks to file documents under seal in their 2 entirety should include an explanation of why redaction is not feasible. 3 4. DEFINITIONS 4 4.1 Action: this pending action styled Case No. 8:24-cv-00801-FWS-JDE, 5 Harper’s Pharmacy, Inc. dba Ameripharma v. FedEx Corporation, et al, in the 6 United States District Court for the Central District of California. 7 4.2 Challenging Party: a Party or Non-Party that challenges the 8 designation of information or items under this Order. 9 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 10 how it is generated, stored or maintained) or tangible things that qualify for 11 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 12 the Good Cause Statement. 13 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 14 4.5 Designating Party: a Party or Non-Party designating information or 15 items that it produces in disclosures or in responses to discovery as 16 “CONFIDENTIAL.” 17 4.6 Disclosure or Discovery Material: all items or information, regardless 18 of the medium or manner in which it is generated, stored, or maintained (including, 19 among other things, testimony, transcripts, and tangible things), that are produced 20 or generated in disclosures or responses to discovery. 21 4.7 Expert: a person with specialized knowledge or experience in a matter 22 pertinent to the litigation who has been retained by a Party or its counsel to serve as 23 an expert witness or as a consultant in this Action. 24 4.8 House Counsel: attorneys employees of a party to this Action. House 25 Counsel does not include Outside Counsel of Record or any other outside counsel. 26 4.9 Non-Party: any natural person, partnership, corporation, association or 27 other legal entity not named as a Party to this action. 28 1 4.10 Outside Counsel of Record: attorneys who are not employees of a party 2 to this Action but are retained to represent a party to this Action and have appeared 3 in this Action on behalf of that party or are affiliated with a law firm that has 4 appeared on behalf of that party, and includes support staff. 5 4.11 Party: any party to this Action, including all of its officers, directors, 6 employees, consultants, retained experts, and Outside Counsel of Record (and their 7 support staffs). 8 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 9 Discovery Material in this Action. 10 4.13 Professional Vendors: persons or entities that provide litigation support 11 services (e.g., photocopying, videotaping, translating, preparing exhibits or 12 demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 13 4.14 Protected Material: any Disclosure or Discovery Material that is 14 designated as “CONFIDENTIAL.” 15 4.15 Receiving Party: a Party that receives Disclosure or Discovery 16 Material from a Producing Party. 17 5. SCOPE 18 The protections conferred by this Stipulation and Order cover not only 19 Protected Material (as defined above), but also (1) any information copied or 20 extracted from Protected Material; (2) all copies, excerpts, summaries, or 21 compilations of Protected Material; and (3) any testimony, conversations, or 22 presentations by Parties or their Counsel that might reveal Protected Material. 23 Any use of Protected Material at trial shall be governed by the orders of the 24 trial judge and other applicable authorities. This Order does not govern the use of 25 Protected Material at trial. 26 The entry of this Stipulation and Protective Order does not alter, waive, 27 modify, or abridge any right, privilege, or protection otherwise available to any 28 1 Party with respect to the discovery of matters, including but not limited to any 2 Party’s right to assert the attorney-client privilege, the attorney work product 3 doctrine, or other privileges, or any Party’s right to consent any such assertion. 4 6. DURATION 5 Once a case proceeds to trial, information that was designated as 6 CONFIDENTIAL or maintained pursuant to this protective order used or 7 introduced as an exhibit at trial becomes public and will be presumptively available 8 to all members of the public, including the press, unless compelling reasons 9 supported by specific factual findings to proceed otherwise are made to the trial 10 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing 11 “good cause” showing for sealing documents produced in discovery from 12 “compelling reasons” standard when merits-related documents are part of court record). Accordingly, the terms of this protective order do not extend beyond the 13 commencement of the trial. 14 7. DESIGNATING PROTECTED MATERIAL 15 7.1 Exercise of Restraint and Care in Designating Material for 16 Protection. Each Party or Non-Party that designates information or 17 items for protection under this Order must take care to limit any such designation to 18 specific material that qualifies under the appropriate standards. The Designating 19 Party must designate for protection only those parts of material, documents, items 20 or oral or written communications that qualify so that other portions of the 21 material, documents, items or communications for which protection is not 22 warranted are not swept unjustifiably within the ambit of this Order. 23 Mass, indiscriminate or routinized designations are prohibited. Designations 24 that are shown to be clearly unjustified or that have been made for an improper 25 purpose (e.g., to unnecessarily encumber the case development process or to impose 26 unnecessary expenses and burdens on other parties) may expose the Designating 27 Party to sanctions. 28 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 7.2 Manner and Timing of Designations. Except as otherwise provided in 5 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 6 that qualifies for protection under this Order must be clearly so designated before 7 the material is disclosed or produced. 8 Designation in conformity with this Order requires: 9 (a) for information in documentary form (e.g., paper or electronic 10 documents, but excluding transcripts of depositions or other pretrial or trial 11 proceedings), that the Producing Party affix at a minimum, the legend 12 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that contains protected material. If only a portion of the material on a page qualifies for 13 protection, the Producing Party also must clearly identify the protected portion(s) 14 (e.g., by making appropriate markings in the margins). 15 A Party or Non-Party that makes original documents available for inspection 16 need not designate them for protection until after the inspecting Party has indicated 17 which documents it would like copied and produced. During the inspection and 18 before the designation, all of the material made available for inspection shall be 19 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 20 documents it wants copied and produced, the Producing Party must determine 21 which documents, or portions thereof, qualify for protection under this Order. 22 Then, before producing the specified documents, the Producing Party must affix the 23 “CONFIDENTIAL legend” to each page that contains Protected Material. If only 24 a portion of the material on a page qualifies for protection, the Producing Party also 25 must clearly identify the protected portion(s) (e.g., by making appropriate markings 26 in the margins). 27 / / / 28 1 (b) for testimony given in depositions that the Designating Party 2 identifies the Disclosure or Discovery Material on the record, before the close of the 3 deposition all protected testimony. 4 (c) for information produced in some form other than documentary and 5 for any other tangible items, that the Producing Party affix in a prominent place on 6 the exterior of the container or containers in which the information is stored the 7 legend “CONFIDENTIAL.” If only a portion or portions of the information 8 warrants protection, the Producing Party, to the extent practicable, shall identify the 9 protected portion(s). 10 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive 12 the Designating Party’s right to secure protection under this Order for such material, so long as a claim of confidentiality is asserted within 14 days after 13 discovery of the inadvertent failure. Upon timely correction of a designation, the 14 Receiving Party must make reasonable efforts to assure that the material is treated 15 in accordance with the provisions of this Order. 16 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 20 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 21 resolution process under Local Rule 37-1 et seq. 22 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 23 joint stipulation pursuant to Local Rule 37-2. 24 8.4 The burden of persuasion in any such challenge proceeding shall be on 25 the Designating Party. Frivolous challenges, and those made for an improper 26 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 27 parties) may expose the Challenging Party to sanctions. Unless the Designating 28 1 Party has waived or withdrawn the confidentiality designation, all parties shall 2 continue to afford the material in question the level of protection to which it is 3 entitled under the Producing Party’s designation until the Court rules on the 4 challenge. 5 9. ACCESS TO AND USE OF PROTECTED MATERIAL 6 9.1 Basic Principles. A Receiving Party may use Protected Material that is 7 disclosed or produced by another Party or by a Non-Party in connection with this 8 Action only for prosecuting, defending or attempting to settle this Action. Such 9 Protected Material may be disclosed only to the categories of persons and under the 10 conditions described in this Order. When the Action has been terminated, a 11 Receiving Party must comply with the provisions of section 15 below (FINAL 12 DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 13 location and in a secure manner that ensures that access is limited to the persons 14 authorized under this Order. 15 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 16 otherwise ordered by the court or permitted in writing by the Designating Party, a 17 Receiving Party may disclose any information or item designated 18 “CONFIDENTIAL” only to: 19 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 20 well as employees of said Outside Counsel of Record to whom it is reasonably 21 necessary to disclose the information for this Action; 22 (b) the officers, directors, and employees (including House Counsel) of 23 the Receiving Party to whom disclosure is reasonably necessary for this Action; 24 (c) Experts (as defined in this Order) of the Receiving Party to whom 25 disclosure is reasonably necessary for this Action and who have signed an 26 “Acknowledgment and Agreement to Be Bound”; 27 (d) the court and its personnel; 28 1 (e) court reporters and their staff; 2 (f) professional jury or trial consultants, mock jurors, and Professional 3 Vendors to whom disclosure is reasonably necessary for this Action and who have 4 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 5 (g) the author or recipient of a document containing the information or 6 a custodian or other person who otherwise possessed or knew the information; 7 (h) during their depositions, witnesses, and attorneys for witnesses, in 8 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 9 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 10 they will not be permitted to keep any confidential information unless they sign the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 12 agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material may 13 be separately bound by the court reporter and may not be disclosed to anyone 14 except as permitted under this Stipulated Protective Order; and 15 (i) any mediators or settlement officers and their supporting personnel, 16 mutually agreed upon by any of the parties engaged in settlement discussions. 17 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 18 PRODUCED IN OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this Action as 21 “CONFIDENTIAL,” that Party must: 22 (a) promptly notify in writing the Designating Party. Such notification 23 shall include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or 25 order to issue in the other litigation that some or all of the material covered by the 26 subpoena or order is subject to this Protective Order. Such notification shall include 27 a copy of this Stipulated Protective Order; and 28 1 (c) cooperate with respect to all reasonable procedures sought to be 2 pursued by the Designating Party whose Protected Material may be affected. If the 3 Designating Party timely seeks a protective order, the Party served with the 4 subpoena or court order shall not produce any information designated in this action 5 as “CONFIDENTIAL” before a determination by the court from which the 6 subpoena or order issued, unless the Party has obtained the Designating Party’s 7 permission. The Designating Party shall bear the burden and expense of seeking 8 protection in that court of its confidential material and nothing in these provisions 9 should be construed as authorizing or encouraging a Receiving Party in this Action 10 to disobey a lawful directive from another court. 11 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 12 BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a 13 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 14 produced by Non-Parties in connection with this litigation is protected by the 15 remedies and relief provided by this Order. Nothing in these provisions should be 16 construed as prohibiting a Non-Party from seeking additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to 18 produce a Non-Party’s confidential information in its possession, and the Party is 19 subject to an agreement with the Non-Party not to produce the Non-Party’s 20 confidential information, then the Party shall: 21 (1) promptly notify in writing the Requesting Party and the Non-Party 22 that some or all of the information requested is subject to a confidentiality 23 agreement with a Non-Party; 24 (2) promptly provide the Non-Party with a copy of the Stipulated 25 Protective Order in this Action, the relevant discovery request(s), and a reasonably 26 specific description of the information requested; and 27 / / / 28 1 (3) make the information requested available for inspection by the Non- 2 Party, if requested. 3 (c) If the Non-Party fails to seek a protective order from this court 4 within 14 days of receiving the notice and accompanying information, the 5 Receiving Party may produce the Non-Party’s confidential information responsive 6 to the discovery request. If the Non-Party timely seeks a protective order, the 7 Receiving Party shall not produce any information in its possession or control that 8 is subject to the confidentiality agreement with the Non-Party before a 9 determination by the court. Absent a court order to the contrary, the Non-Party 10 shall bear the burden and expense of seeking protection in this court of its Protected 11 Material. 12 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 13 Protected Material to any person or in any circumstance not authorized under this 14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 15 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 17 persons to whom unauthorized disclosures were made of all the terms of this Order, 18 and (d) request such person or persons to execute the “Acknowledgment an 19 Agreement to Be Bound” attached hereto as Exhibit A. 20 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 21 OTHERWISE PROTECTED MATERIAL 22 When a Producing Party gives notice to Receiving Parties that certain 23 inadvertently produced material is subject to a claim of privilege or other protection, 24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil\ 25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 26 may be established in an e-discovery order that provides for production without prior 27 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 28 1 parties reach an agreement on the effect of disclosure of a communication or 2 information covered by the attorney-client privilege or work product protection, the 3 parties may incorporate their agreement in the stipulated protective order submitted 4 to the court. 5 14. MISCELLANEOUS 6 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 7 person to seek its modification by the Court in the future. 8 14.2 Right to Assert Other Objections. By stipulating to the entry of this 9 Protective Order, no Party waives any right it otherwise would have to object to 10 disclosing or producing any information or item on any ground not addressed in this 11 Stipulated 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 Order. 14.3 Filing Protected Material. A Party that seeks to file under seal any 13 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 14 only be filed under seal pursuant to a court order authorizing the sealing of the 15 specific Protected Material. If a Party’s request to file Protected Material under seal 16 is denied by the court, then the Receiving Party may file the information in the public 17 record unless otherwise instructed by the court. 18 15. FINAL DISPOSITION 19 After the final disposition of this Action, as defined in paragraph 6, within 60 20 days of a written request by the Designating Party, each Receiving Party must return 21 all Protected Material to the Producing Party or destroy such material. As used in 22 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 23 summaries, and any other format reproducing or capturing any of the Protected 24 Material. Whether the Protected Material is returned or destroyed, the Receiving 25 Party must submit a written certification to the Producing Party (and, if not the same 26 person or entity, to the Designating Party) by the 60-day deadline that (1) identifies 27 (by category, where appropriate) all the Protected Material that was returned or 28 ! || destroyed and (2) affirms that the Receiving Party has not retained any copies, 2 || abstracts, compilations, summaries or any other format reproducing or capturing any 3 the Protected Material. Notwithstanding this provision, Counsel are entitled to 4 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 5 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 6 || reports, attorney work product, and consultant and expert work product, even if such 7 materials contain Protected Material. Any such archival copies that contain or 8 || constitute Protected Material remain subject to this Protective Order as set forth in 9 || Section 6 (DURATION). 10 16. VIOLATION 11 Any violation of this Order may be punished by appropriate measures 12 |} including, without limitation, contempt proceedings and/or monetary sanctions. 13 14 15 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 16 DATED: July 12, 2024 7 i de, Is hte 19 nited States Magistrate Judge 20 21 22 23 24 25 26 27 28 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 5 penalty of perjury that I have read in its entirety and understand the Stipulated Protective 6 Order that was issued by the United States District Court for the Central District of 7 California on July 12, 2024, in the case of HARPER’S PHARMACY, INC. V. FEDEX 8 CORPORATION, et al., C.D. Cal. Case No. 8:24-00801-FWS-JDEx . I agree to comply 9 with and to be bound by all the terms of this Stipulated Protective Order and I understand 10 and acknowledge that failure to so comply could expose me to sanctions and punishment 11 in the nature of contempt. I solemnly promise that I will not disclose in any manner any 12 information or item that is subject to this Stipulated Protective Order to any person or 13 entity except in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for 15 the Central District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of 17 this action. I hereby appoint ___________________________[print or type full name] 18 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: ________________________________________ 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28