Izaaz v. Cardinal Health 200, LLC ( 2022 )

1 Robert C. Bowman, Jr., (State Bar No. 232388) Laura Reich (State Bar No. 289115) 2 LAW OFFICES OF BOWMAN & ASSOCIATES A Professional Law Corporation 3 1451 River Park Drive, Suite 125 Sacramento, CA 95815 4 Telephone: (916) 923-2800 Facsimile: (916) 358-8689 5 E-mail: robert@bowmanandassoc.com E-mail: lreich@bowmanandassoc.com 6 Attorney for Plaintiff 7 MOHAMMED IZAAZ 8 Leila Nourani (State Bar No. 163336) JACKSON LEWIS P.C. 9 725 South Figueroa Street, Suite 2500 Los Angeles, California 90017-5408 10 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 11 E-mail: Leila.Nourani@jacksonlewis.com 12 Benjamin J. Schnayerson (State Bar No. 257857) Gonzalo Morales (State Bar No. 334944) 13 JACKSON LEWIS P.C. 50 California Street, 9th Floor 14 San Francisco, California 94111-4615 Telephone: (415) 394-9400 15 Facsimile: (415) 394-9401 E-mail: Ben.Schnayerson@jacksonlewis.com 16 E-mail: Gonzalo.Morales@jacksonlewis.com 17 Attorneys for Defendant CARDINAL HEALTH, INC. 18 19 UNITED STATES DISTRICT COURT 20 EASTERN DISTRICT OF CALIFORNIA 21 22 MOHAMMED IZAAZ, No. 2:22-cv-0715 JAM DB 23 Plaintiff, STIPULATED PROTECTIVE ORDER 24 v. 25 CARDINAL HEALTH 200, LLC and DOES 1 through 20, inclusive; 26 27 Defendants. 28 1 The parties have agreed to and have submitted to the Court, and for good cause shown the 2 Court hereby enters, the following Confidentiality Order: 3 1. This Order shall govern the disclosure of materials designated as Confidential 4 Material in this litigation. Confidential Material, as used in this Order, shall refer to any document 5 or item designated as Confidential or Highly Confidential – Attorneys’ Eyes Only, including but 6 not limited to, documents or items produced during discovery, all copies thereof, and the 7 information contained in such material. Nothing in this Order shall require any party to produce 8 any specific documents or category of documents which a party deems inappropriate for 9 production. 10 2. If a party to this action serves a non-party with a subpoena for documents or 11 deposition testimony pursuant to this litigation, that party shall provide the non-party with a copy 12 of this Order. If the non-party executes Exhibit A to this Order and thereby agrees to be bound by 13 its terms, the non-party may then designate documents and deposition testimony as Confidential 14 Material pursuant to the terms of this Order and rely on this Order as if it were a party. No third 15 party may receive or view information designated as “CONFIDENTIAL” pursuant to this Order 16 unless the third party has executed Exhibit A to this Order, and thereby agreed to be bound by its 17 terms. 18 3. Confidential Material, as used in this Order, consists of the following materials and 19 categories of materials: 20 a. Materials relating to any privileged, confidential, or nonpublic information, including, but not limited to, trade secrets, research, design, development, financial, 21 technical, marketing, planning, personal, or commercial information, as such terms are used in the Federal Rules of Civil Procedure (FRCP) and any applicable case 22 law interpreting FRCP 26(c)(1)(G); contracts; proprietary information; vendor agreements; personnel files; claim/litigation information; and nonpublic policies 23 and procedures shall be deemed Confidential. 24 b. Materials containing corporate trade secrets, nonpublic research and development data, pricing formulas, inventory management programs, other 25 strategic sales or business information not known to the public; information obtained from a non-party pursuant to a non-disclosure agreement; and customer- 26 related Protected Data shall be deemed Highly Confidential – Attorneys’ Eyes Only. 27 28 1 c. Protected Data shall refer to any information that a party believes in good faith to be subject to federal, state or foreign data protection laws or other privacy 2 obligations. Examples of such data protection laws include but are not limited to The Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (financial information); 3 and, The Health Insurance Portability and Accountability Act and the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 (medical 4 information). Certain Protected Data may compel alternative or additional protections beyond those afforded Highly Confidential – Attorneys’ Eyes Only 5 material, in which event the parties shall meet and confer in good faith, and, if unsuccessful, shall move the Court for appropriate relief. 6 7 4. If any party seeks to designate additional documents or categories of documents 8 produced by any other party as Confidential Material, it will be the burden of the party seeking 9 protected status to move for a court order designating the materials as confidential after the parties 10 confer. 11 5. The parties agree that such Confidential Material as described in paragraph 2 should 12 be given the protection of an order of this Court to prevent injury through disclosure to persons 13 other than those persons involved in the prosecution or defense of this litigation. 14 6. To designate information as confidential, the producing party shall mark 15 Confidential Material with the legend “CONFIDENTIAL – SUBJECT TO PROTECTIVE 16 ORDER” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SUBJECT TO 17 PROTECTIVE ORDER” and shall submit confidential discovery, such as answers to 18 interrogatories or answers to requests for admissions, in a separate document stamped with the 19 appropriate legend. The Receiving Party may make copies of Confidential Material and such 20 copies shall become subject to the same protections as the Confidential Material from which those 21 copies were made. 22 a. Information on a disk or other electronic format may be designated confidential by marking the storage medium itself with the legend “CONFIDENTIAL – SUBJECT TO 23 CONFIDENTIALITY ORDER” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SUBJECT TO CONFIDENTIALITY ORDER.” The Receiving Party shall mark 24 any hard-copy printouts and the storage medium of any permissible copies of such electronic material with the corresponding legend contained on the original and such copies 25 shall become subject to the same protections, as the Confidential Material from which those copies were made. 26 b. Information disclosed at any deposition of a party taken in this action may be designated 27 by the party as confidential by indicating on the record at the deposition that the information is confidential and subject to the provisions of this Order. Alternatively, the 28 party may designate information disclosed at the deposition as confidential by notifying 1 of the transcript, of the specific pages and lines of the transcript which are designated as confidential. The parties may agree to a reasonable extension of the 15-business-day period 2 for designation. Designations of transcripts will apply to audio, video, or other recordings of the testimony. During such 15-business-day period, the entire transcript shall receive 3 confidential treatment. Upon such designation, the court reporter and each party shall affix the “CONFIDENTIAL – SUBJECT TO CONFIDENTIALITY ORDER” or “HIGHLY 4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SUBJECT TO CONFIDENTIALITY ORDER”” legend to the designated pages and segregate them as appropriate. 5 c. Copies of material described in paragraph 2 above, or incorporated into paragraph 2 by 6 Court Order, and which were produced without the designation of “CONFIDENTIAL – SUBJECT TO CONFIDENTIALITY ORDER” or “HIGHLY CONFIDENTIAL – 7 ATTORNEYS’ EYES ONLY – SUBJECT TO CONFIDENTIALITY ORDER” may be so designated later if the Producing Party failed to make such designation at the time of 8 production through inadvertence or error. If such information has been disclosed to persons not qualified pursuant to paragraph 7 below, the party who disclosed such information shall 9 take reasonable efforts to retrieve previously disclosed Confidential Material and advise such persons that the material is Confidential. 10 7. Pursuant to Federal Rule of Evidence (FRE) 502(d), the production of documents 11 or electronically stored information (“ESI”) protected by the attorney-client privilege or work 12 product doctrine, is not a waiver of the privilege or protection from discovery in this case or in any 13 other federal or state proceeding. This provision shall be interpreted to provide the maximum 14 protection allowed by FRE 502 and shall be enforceable and granted full faith and credit in all 15 other state and federal proceedings by 28 U.S. Code § 1738. In the event of any subsequent conflict 16 of law, the law that is most protective of privilege and work product shall apply. Nothing contained 17 herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI 18 or information (including metadata) for relevance, responsiveness and/or segregation of privileged 19 and/or protected information before production. 20 Any party subject to this Order who receives a document or electronic information and has 21 reasonable cause to believe that the document or information was inadvertently sent shall not read 22 the document or information or, if he or she has begun to do so, shall stop reading it. The party 23 shall (1) promptly notify the sender, (2) return the document to the sender and, (3) if in electronic 24 form, delete it and take reasonable measures to assure that the information is inaccessible. Any 25 party or non-party subject to this Order who receives a document or electronic information that 26 contains privileged attorney-client communications involving an adverse or third party and who 27 has reasonable cause to believe that the document or information was wrongfully obtained shall 28 1 recipient shall (1) promptly notify the party or attorney whose communications are contained in 2 the document or information, (2) return the document to the other party or attorney and, (3) if in 3 electronic form, delete it and take reasonable measures to assure that the information is 4 inaccessible. 5 Pursuant to FRCP 26(b)(5)(B) and FRE 502(e), the Receiving Party hereby agrees to 6 return, sequester, or destroy any Privileged Information disclosed or produced by the Producing 7 Party upon request. If the Receiving Party reasonably believes that Privileged Information has 8 been disclosed or produced to it, it shall promptly notify the Producing Party and sequester such 9 information until instructions as to disposition are received. The failure of any party or non-party 10 subject to this Order to provide notice or instructions under this Paragraph shall not constitute a 11 waiver of, or estoppel to, any claim of attorney-client privilege, attorney work product, or other 12 ground for withholding production as to which the Producing Party would be entitled in the 13 litigation or any other federal or state proceeding. 14 8. Any Confidential Material and the information contained therein shall be disclosed 15 only to the Court, its staff, and counsel of record, and also shall be disclosed on a need-to-know 16 basis only to the parties, counsel’s staff personnel, employees of a party to whom disclosure is 17 necessary in connection with the preparation for and trial of this action, and any witnesses in the 18 case (including consulting and testifying experts) as may from time to time reasonably be 19 necessary in prosecution or defense of this action. Qualified recipients of materials marked "Highly 20 Confidential – Attorneys’ Eyes Only " shall include only the following: In-house counsel and law 21 firms for each party and the secretarial, clerical and paralegal staff of each. Confidential Material 22 shall not be disclosed to any outside experts or consultants who are current or former employees 23 or current or former consultants of a direct competitor of any party named in the litigation. Counsel 24 shall advise all persons to whom Confidential Material is disclosed pursuant to this Order of the 25 existence of this Order and shall provide all such persons (other than the Court and its staff) with 26 a copy of this Order. Counsel also shall require all persons, except the Court, its staff, the parties, 27 counsel of record and counsel’s staff personnel, to execute the Affidavit attached as Exhibit A, 28 prior to the disclosure of Confidential Material. It shall be the obligation of counsel, upon learning 1 of any breach or threatened breach of this Order, to promptly notify counsel for the Producing 2 Party of such breach or threatened breach. Counsel shall not otherwise offer or permit disclosure 3 of any Confidential Material, its contents, or any portion or summary thereof. Disputes concerning 4 the confidential nature of such materials shall be resolved by the Court upon motion prior to 5 dissemination of any Confidential Material. 6 9. The parties may redact (1) information that is privileged or protected from 7 discovery as work product or by reason of any other applicable privilege, privacy right or 8 immunity; (2) information subject to non-disclosure obligations imposed by governmental 9 authorities, law or regulation (e.g., protected personal information); (3) sensitive, non-relevant 10 information, including but not limited to personally identifiable information, private information, 11 and trade secrets within documents that contain relevant information; (4) non-relevant information 12 that concerns unrelated products or components manufactured or distributed by Defendant or its 13 affiliates, industry sales data, sales, or marketing outside the United States. 14 10. Persons having knowledge of Confidential Material and information due to their 15 participation in the conduct of this litigation shall use such knowledge and information for that 16 purpose only and only as permitted herein, and shall not disclose such Confidential Material, their 17 contents or any portion or summary thereof to any person(s) not involved in the conduct of this 18 litigation. If any person having access to the Confidential Material herein shall violate this Order, 19 he/she may be subject to sanctions by the Court. 20 11. Confidential Information must be stored and maintained by a receiving party at a 21 location and in a secure manner that ensures that access is limited to the persons authorized under 22 this Order. Receiving parties shall exercise the same care with regard to the storage, custody, or 23 use of Confidential Information as they would apply to their own material of the same or 24 comparable confidentiality and sensitivity. Receiving parties must take reasonable precautions to 25 protect Confidential Information from loss, misuse and unauthorized access, disclosure, alteration 26 and destruction, including but not limited to: 27 (a) Confidential Information in electronic form shall be maintained in a secure 28 litigation support site that applies standard industry practices regarding data security, including but 1 not limited to application of access control rights to those persons entitled to access Confidential 2 Information under this Order; 3 (b) A list of current and former authorized users of the receiving party’s litigation 4 support site shall be maintained while this litigation, including any appeal, is pending; 5 (c) Confidential Information downloaded from the litigation support site in electronic 6 format shall be stored or shipped only on devices or media (e.g., laptop, tablet, smartphone, USB 7 drive) that are encrypted with access limited to persons entitled to access Confidential Information 8 under this Order; 9 (d) Confidential Information in paper format shall be maintained in the receiving 10 party’s counsel’s law offices or comparably secure location, with access limited to persons entitled 11 to access Confidential Information under this Order; 12 (e) Electronic delivery of Confidential Information shall be by secure File Transfer 13 Protocol or encrypted email addressed only to persons entitled to access Confidential Information 14 under this Order; 15 (f) Physical shipments of Confidential Information shall be securely sealed and 16 addressed only to persons entitled to access Confidential Information under this Order; and 17 (g) If a data breach that includes Confidential Information occurs or a receiving party 18 reasonably believes such a breach may have occurred, the receiving party shall immediately report 19 such incident to the designating party, describe the Confidential Information accessed without 20 authorization, and use best efforts to return to the designating party Confidential Information 21 copied or removed. In such event, the receiving party shall immediately take such actions as the 22 producing party shall request in good faith to remediate the breach, to preclude further breaches, and 23 to address publicity regarding the breach, and in any event take such actions as are required by 24 applicable laws, including privacy laws. After notification, the receiving party shall keep the 25 designating party informed of remediation efforts. 26 12. The provisions of this Order shall not affect, and this Order does not limit, the use 27 or admissibility of Confidential Material (or references to that material) as evidence at trial, or 28 during a hearing or similar proceeding in this action or as part of the record on appeal, provided 1 that either party may seek an appropriate Court Order to protect Confidential Material. 2 13. Nothing in this Order shall be deemed to preclude any party or interested member 3 of the public from seeking and obtaining, on an appropriate showing, a modification of this Order 4 including additional protection with respect to confidentiality of material or the removal of a 5 confidential designation. Should counsel or an interested member of the public disagree with any 6 designation of material as confidential, he or she first shall attempt to resolve such dispute with 7 the parties’ counsel and, if unsuccessful, apply to the Court for a determination as to whether the 8 material or information should remain designated as Confidential Material. Pending resolution of 9 any challenges, the material at issue shall continue to be treated as Confidential Material until 10 ordered otherwise by the Court. 11 14. The restrictions set forth in any of the preceding paragraphs shall not apply to 12 information or material that was, is or becomes public knowledge in a manner other than by 13 violation of this Order. 14 15. Without written permission from the Producing Party or court order secured after 15 appropriate notice to all interested persons, a party may not file in the public record in this action 16 any Confidential Material. A party that seeks to file under seal any Confidential Material must 17 comply with Local Rule 141. 18 16. In the event Confidential Materials or portions of transcripts are sealed as 19 confidential by the Court as described in paragraph 12 above, they shall be filed in an envelope 20 bearing the following designation when deposited: 21 CONFIDENTIAL 22 IN ACCORDANCE WITH THE CONFIDENTIALITY ORDER OF THE COURT, THE CONTENTS OF THIS ENVELOPE 23 SHALL BE TREATED AS CONFIDENTIAL AND MUST NOT BE SHOWN TO A PERSON OTHER THAN THE COURT, 24 ATTORNEYS IN THIS CASE, OR TO PERSONS ASSISTING THOSE ATTORNEYS. 25 26 17. This Order shall continue to be binding throughout and after the conclusion of this 27 litigation, including all appeals. Within thirty (30) days of settlement or final adjudication, 28 including the expiration or exhaustion of all rights to appeal or petitions for extraordinary writs, 1 each party or non-party to whom any materials were produced shall, without further request or 2 direction from the Producing Party, promptly destroy all documents, items or data received 3 including, but not limited to, copies or summaries thereof, in the possession or control of any 4 expert or employee. The Receiving Party shall submit a written certification to the Producing Party 5 by the 30-day deadline that (1) confirms the destruction/deletion of all documents, items or data, 6 including any copies of Confidential Materials provided to persons required to execute Exhibit A 7 (Affidavit), and (2) affirms the Receiving Party has not retained any copies, abstracts, 8 compilations, summaries or any other format reproducing or capturing any of the Confidential 9 Material. Notwithstanding this provision, counsel is entitled to retain any attorney work product. 10 18. If any person receiving documents covered by this Order is served with a subpoena, 11 order, interrogatory, or document or civil investigative demand (collectively, a “Demand”) issued 12 in any other action, investigation, or proceeding, and such Demand seeks material that was 13 produced or designated as Confidential Material by someone other than the Receiving Party, the 14 Receiving Party shall give prompt written notice by hand or electronic transmission within five (5) 15 business days of receipt of such Demand to the party or non-party who produced or designated the 16 material as Confidential Material, and shall object to the production of such materials on the 17 grounds of the existence of this Order. The burden of opposing the enforcement of the Demand 18 shall fall upon the party or non-party who produced or designated the material as Confidential 19 Material. Unless the party or non-party who produced or designated the Confidential Material 20 obtains an order directing that the Demand not be complied with, and serves such order upon the 21 Receiving Party prior to production pursuant to the Demand, the Receiving Party shall be permitted 22 to produce documents responsive to the Demand on the Demand response date, provided sufficient 23 notice of the Demand is provided. Compliance by the Receiving Party with any order directing 24 production pursuant to the Demand of any Confidential Material shall not constitute a violation of 25 this Order. Nothing in this Order shall be construed as authorizing a party to disobey a lawful 26 subpoena issued in another action. 27 19. In the event additional parties join or intervene in this litigation, the newly joined 28 party(ies) shall not have access to Confidential Material until its/their counsel has executed and, 1 at the request of any party, filed with the Court the agreement of such party(ies) and such counsel 2 to be fully bound by this Order. 3 20. The parties agree that nothing in this Order shall be deemed to limit the extent to 4 which counsel for the parties may advise or represent their respective clients, conduct discovery, 5 prepare for trial, present proof at trial, including any document herein, or oppose the production or 6 admissibility of any information or documents which have been requested. 7 21. This Order shall remain in full force and effect until such time as it is modified, 8 amended or rescinded by the Court. 9 IT IS SO STIPULATED. 10 11 12 Respectfully stipulated to and submitted by: 13 14 Dated: July 20, 2022 LAW OFFICES OF BOWMAN & ASSOCIATES 15 16 By: /s/ Laura Reich Robert C. Bowman, Jr. 17 Laura Reich Attorney for Plaintiff 18 MOHAMMED IZAAZ 19 20 Dated: July 20, 2022 JACKSON LEWIS P.C. 21 22 By: /s/ Gonzalo Morales Leila Nourani 23 Benjamin J. Schnayerson Gonzalo Morales 24 Attorneys for Defendant CARDINAL HEALTH, INC. 25 26 27 28 1 ORDER 2 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 3 IT IS FURTHER ORDERED THAT: 4 1. Requests to seal documents shall be made by motion before the same judge who will 5 decide the matter related to that request to seal. 6 2. The designation of documents (including transcripts of testimony) as confidential pursuant to this order does not automatically entitle the parties to file such a document with the 7 court under seal. Parties are advised that any request to seal documents in this district is governed 8 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 9 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 10 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 11 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 12 the requested duration, the identity, by name or category, of persons to be permitted access to the 13 document, and all relevant information.” L.R. 141(b). 14 3. A request to seal material must normally meet the high threshold of showing that 15 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 16 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 17 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana 18 v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 19 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of 20 certain documents, at any court hearing or trial – such determinations will only be made by the 21 court at the hearing or trial, or upon an appropriate motion. 22 5. With respect to motions regarding any disputes concerning this protective order which 23 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 24 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis or on shortened time. 25 6. The parties may not modify the terms of this Protective Order without the court’s 26 approval. If the parties agree to a potential modification, they shall submit a stipulation and 27 proposed order for the court’s consideration. 28 1 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement 2 of the terms of this Protective Order after the action is terminated. 3 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 4 hereby DISAPPROVED. 5 DATED: July 22, 2022 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A TO CONFIDENTIALITY ORDER 2 MOHAMMED IZAAZ, Case No. 2:22-cv-00715 3 Plaintiff, 4 v. 5 CARDINAL HEALTH 200, LLC and DOES 1 through 20, inclusive; 6 7 Defendants. 8 9 AFFIDAVIT OF COMPLIANCE WITH CONFIDENTIALITY ORDER 10 1. My name is ___________________. I live at __________________________. I 11 am working on behalf (or at the direction and engagement) of 12 __________________________. 13 2. I am aware that a Confidentiality Order has been entered in the matter Mohammed 14 Izaaz v. Cardinal Health 200, LLC, pending in the United States District Court, Eastern 15 District of California, and a copy thereof has been given to me, and I have read and 16 understand the provisions of same. 17 3. I acknowledge that documents and information designated as confidential and/or 18 highly confidential pursuant to such Confidentiality Order (“Confidential Materials”) are 19 being disclosed to me only upon the condition that I agree (a) to be subject to the 20 jurisdiction of this Court and (b) to comply with that Order. I hereby agree to abide by such 21 Order, subject to all penalties prescribed therein, including contempt of Court, for 22 disobedience of said Order. I promise that the documents and information given 23 confidential treatment under the Confidentiality Order entered in this case will be used by 24 me only to assist counsel for the parties in preparing for litigation of the above-captioned 25 matter. I understand that any use of such Confidential Material in any manner contrary to 26 the provisions of the Confidentiality Order may subject me to the sanctions of this Court 27 for contempt and to liability for any damages caused by my breach of the Confidentiality 28 Order. 1 4. I shall not disclose nor permit to be reviewed or copied said Confidential Materials, 2 or any information derived from, by any person other than the parties and counsel for the 3 parties or members of their staff. 4 5. Within 30 days after the above-captioned lawsuit ends in a final non-appealable 5 order, I agree to destroy all Confidential Materials in my possession. 6 7 Dated: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4881-8617-3991, v. 1