1 MATTHEW D. POWERS (S.B. #212682) [email protected] 2 HANNAH Y. CHANOINE (pro hac vice) [email protected] 3 E. CLAY MARQUEZ (S.B. #268424) [email protected] 4 O’MELVENY & MYERS LLP 5 Two Embarcadero Center, 28th Floor San Francisco, CA 94111

6 Tel: (415) 984-8700

7 Attorneys for Defendant JOHNSON & JOHNSON CONSUMER INC. 8 TODD M. FRIEDMAN (S.B. #216752) 9 [email protected] MEGHAN GEORGE (S.B. #274525) 10 [email protected] LAW OFFICES OF TODD M. FRIEDMAN, 11 P.C. 12 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367

13 Tel: 877-619-8966

14 Attorneys for Plaintiff NARGUESS NOOHI 15

16 UNITED STATES DISTRICT COURT

17 CENTRAL DISTRICT OF CALIFORNIA

18 WESTERN DIVISION

19 NARGUESS NOOHI, individually Case No. 2:20-cv-03575-TJH-JEM 20 and on behalf of other members of the general public similarly situated, 21 22 Plaintiff, S OT RI DPU ERLA TED PROTECTIVE

23 v. Judge: Hon. Terry J. Hatter Jr. 24 JOHNSON & JOHNSON CONSUMER, INC., DOES 1-100, Mag. Judge: Hon. John E. McDermott 25 INCLUSIVE.

26 Defendant.

27

28 1 Plaintiff Narguess Noohi (“Plaintiff”), on the one hand, and Defendant

2 Johnson and Johnson Consumer Inc. (“JJCI,”), on the other hand (collectively, “the

3 Parties”), seek entry of an Order under Federal Rule of Civil Procedure 26(c) and

4 any other applicable laws and rules to facilitate the orderly and efficient disclosure

5 of relevant information, to minimize the potential for unauthorized disclosure of

6 Confidential Material, and to obtain other relief agreed to by the Parties and set out

7 in this Order.

8 A. Purposes and Limitations

9 Discovery in this action is likely to involve production and disclosure of

10 confidential, proprietary, or private information for which special protection from

11 public disclosure and from use for any purpose other than prosecuting this litigation

12 may be warranted. Accordingly, the Parties hereby stipulate to and petition the

13 Court to enter the following Stipulated Protective Order. The Parties acknowledge

14 that this Order does not confer blanket protections on all disclosures or responses to

15 discovery and that the protection it affords from public disclosure and use extends

16 only to the limited information or items that are entitled to confidential treatment

17 under the applicable legal principles.

18 B. Good Cause Statement

19 This action is likely to involve competitively-sensitive commercial, financial,

20 technical, and/or proprietary information for which special protection from public

21 disclosure and from use other than prosecution of this action is warranted. Such

22 confidential and proprietary materials and information consist of, among other

23 things: confidential business, financial, or sales information; information regarding

24 confidential business practices or strategies, including but not limited to how JJCI

25 addresses customer concerns; information relating to product formulation,

26 development, testing, marketing, or distribution; other confidential research,

27 product development, or commercial information (including information

28 implicating privacy rights of third parties); information otherwise generally 1 unavailable to the public; and information which may be privileged or otherwise

2 protected from disclosure under state or federal statutes, court rules, case decisions,

3 or common law, the public disclosure of which could harm JJCI’s competitive

4 advantage. Accordingly, to expedite the flow of information, to facilitate the

5 prompt resolution of disputes over confidentiality of discovery materials, to

6 adequately protect information the Parties are entitled to keep confidential, to

7 ensure that the Parties are permitted reasonably necessary uses of such material in

8 preparation for and in the conduct of trial, to address their handling at the end of the

9 litigation, and serve the ends of justice, a protective order for such information is

10 justified in this matter. It is the intent of the Parties that information will not be

11 designated as confidential for tactical reasons and that nothing be so designated

12 without a good faith belief that it has been maintained in a confidential, non-public

13 manner, and there is good cause why it should not be part of the public record of

14 this case.

15 C. Acknowledgment of Procedures for Filing Under Seal

16 The Parties further acknowledge, as set forth in Paragraph 7.b. below, that

17 this Stipulated Protective Order does not entitle them to file Confidential Material

18 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed

19 and the standards that will be applied when a party seeks permission from the Court

20 to file material under seal.

21 There is a strong presumption that the public has a right of access to judicial

22 proceedings and records in civil cases. In connection with non-dispositive motions,

23 good cause must be shown to support a filing under seal, see Kamakana v. City &

24 Cnty. of Honolulu,

, 1176 (9th Cir. 2006); Phillips v. Gen. Motors

25 Corp.,

, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,

26 Inc.,

(E.D. Wis. 1999) (even stipulated protective orders

27 require good cause showing), and a specific showing of good cause or compelling

28 reasons with proper evidentiary support and legal justification must be made with 1 respect to Protected Material that a party seeks to file under seal. The Parties’ mere

2 designation of discovery material as “CONFIDENTIAL” does not—without the

3 submission of competent evidence by declaration, establishing that the material

4 sought to be filed under seal qualifies as confidential, privileged, or otherwise

5 protectable—constitute good cause.

6 Further, if a Party requests sealing related to a dispositive motion or trial,

7 then compelling reasons, not only good cause, for the sealing must be shown, and

8 the relief sought shall be narrowly tailored to serve the specific interest to be

9 protected. See Pintos v. Pac. Creditors Ass’n,

(9th Cir.

10 2010). For each item or type of information, document, or thing sought to be filed

11 or introduced under seal in connection with a dispositive motion or trial, the Party

12 seeking protection must articulate compelling reasons, supported by specific facts

13 and legal justification, for the requested sealing order. Again, competent evidence

14 supporting the application to file documents under seal must be provided by

15 declaration.

16 Any document that is not confidential, privileged, or otherwise protectable in

17 its entirety will not be filed under seal if the confidential portions can be redacted.

18 If documents can be redacted, then a redacted version for public viewing, omitting

19 only the confidential, privileged, or otherwise protectable portions of the document,

20 shall be filed. Any application that seeks to file documents under seal in their

21 entirety should include an explanation of why redaction is not feasible.

22 1. Scope.

23 a. This Stipulated Protective Order governs all Confidential Material,

24 including “Confidential Material—Attorney Eyes Only,” designated pursuant

25 to this Order.

26 i. “Confidential Material” means any hardcopy or electronic

27 document, information, testimony (i.e., depositions, declarations, or

28 other pre-trial statements in this Proceeding), and all copies, data, 1 extracts, compilations, summaries, reports, and information obtained,

2 derived, or generated from such material that the party designating the

3 material as confidential (“Designating Party”) reasonably believes to

4 be entitled to confidential treatment under Federal Rules of Civil

5 Procedure 26(c)(1)(G) or other applicable laws or regulations.

6 Confidential Material includes, but is not limited to, trade secrets (as

7 defined in the Uniform Trade Secrets Act); other confidential research,

8 development, or commercial information; all information that, if

9 disclosed, could result in competitive, commercial, or business harm;

10 and any person’s personal identifying information, financial

11 information, medical/insurance information, or other information that

12 is private under applicable laws or regulations.

13 ii. “Confidential Material—Attorney Eyes Only” means

14 Confidential Material that the Designating Party reasonably believes to

15 contain highly confidential information the disclosure of which would

16 cause the Designating Party serious competitive and commercial harm.

17 Unless otherwise specified, provisions in this Order regarding

18 “Confidential Material” shall also encompass “Confidential Material—

19 Attorney Eyes Only.”

20 b. This Order is binding upon all current and future Parties in this action

21 (including their respective corporate parents, subsidiaries, affiliates,

22 successors, and attorneys and all other representatives or agents), their

23 counsel, and all signatories to Exhibit A, the Non-Disclosure Agreement

24 (deemed to be part of this Order), and all other persons or entities authorized

25 under this Order or any other Order of this Court to receive or view

26 Confidential Material.

27 c. The entry of this Order does not preclude any Party in this action from

28 seeking further order of this Court, including modification of this Order, or 1 from objecting to discovery that the Party believes to be improper.

2 d. Nothing herein shall be construed as an admission or concession by a

3 Designating Party that any Confidential Material constitutes relevant,

4 material, or admissible evidence in this matter.

5 2. Designation of Confidential Material; Failure to Make Designations.

6 a. Exercise of Restraint and Care in Designating Material for Protection.

7 i. Each Party or Non-Party that designates information or items for

8 protection under this Order must take care to limit any such

9 designations to specific material that qualifies under the appropriate

10 standards. The Designating Party must designate for protection only

11 those parts of material, documents, items, or oral or written

12 communications, that qualify so that other portions of the material,

13 documents, items, or communications for which protection is not

14 warranted are not swept unjustifiably within the ambit of this Order.

15 Documents produced in this action may be designated at the document

16 level for purposes of production, however, any publicly filed versions

17 of the same should be narrowly redacted, wherever possible and

18 appropriate, so that only those portions of the document(s) qualifying

19 for protection are withheld from public disclosure.

20 ii. Mass, indiscriminate, or routinized designations are prohibited.

21 Designations that are shown to be clearly unjustified or that have been

22 made for an improper purpose (e.g., to unnecessarily encumber the

23 case development process or to impose unnecessary expenses and

24 burdens on other parties) may expose the Designating Party to

25 sanctions.

26 iii. If it comes to a Designating Party’s attention that information or

27 items that it designated for protection do not qualify for protection,

28 1 that Designating Party must promptly notify all other Parties that it is

2 withdrawing the inapplicable designation.

3 b. Documents Produced in Image, PDF, or Hardcopy Form (“Image”).

4 The Designating Party shall place on each page the following legend:

5 PROTECTED DOCUMENT, SUBJECT TO PROTECTIVE ORDER or

6 PROTECTED DOCUMENT—ATTORNEY EYES ONLY, SUBJECT TO

7 PROTECTIVE ORDER. The legend shall not obscure any content of the

8 original document. Any person making a copy of the image, if authorized

9 under this Order, shall ensure that the same legend shows on the copy.

10 c. Documents Produced in Native Format (“native file”). A Designating

11 Party shall rename each native file to include, at the end of the file name and

12 prior to the file extension, the following language: PROTECTED or

13 PROTECTED—ATTORNEY EYES ONLY. Any person making any copy

14 of the native file, if authorized under this Order, shall not rename the file.

15 d. Deposition Testimony and Exhibits.

16 i. Following any deposition and for thirty (30) days after the

17 Parties’ counsel have received from the court reporter a final copy of a

18 deposition transcript, all testimony, transcripts, and exhibits shall

19 constitute Confidential Material. Thereafter, the transcript, or portions

20 of transcripts, or exhibits designated as Confidential Material shall

21 remain subject to this Order. In addition, no further actions need be

22 taken regarding any exhibit previously designated as Confidential

23 Material.

24 ii. Confidential Material designated before or at a deposition shall

25 not be shown to a witness who is not a Qualified Person as described

26 below, and persons attending the deposition who are not Qualified

27 Persons may be excluded from the portions of the deposition during

28 which Confidential Material is disclosed. 1 iii. Deposition transcript or exhibit pages containing Confidential

2 Material shall be separately bound by the court reporter, who must

3 affix to the top of each page the legend “PROTECTED DOCUMENT,

4 SUBJECT TO PROTECTIVE ORDER” or “PROTECTED

5 DOCUMENT—ATTORNEY EYES ONLY, SUBJECT TO

6 PROTECTIVE ORDER.”

7 e. Pleadings, Motion Papers, and Written Discovery Papers.

8 i. A party may designate as Confidential Material portions of

9 pleadings, motion papers (written motions, affidavits, and briefs), and

10 written discovery papers (requests and responses).

11 ii. A Party preparing such written papers should designate portions

12 as Confidential Material when the papers are served or filed. If

13 feasible, the Confidential Material shall be bound separately from

14 material not entitled to protection.

15 iii. A party receiving such written papers shall make designations

16 within thirty (30) days after service or filing of the papers.

17 f. Other Confidential Material. For Confidential Material in a form not

18 addressed above (e.g., DVDs, portable hard drives, or other tangible items),

19 the Designating Party shall affix in a prominent place on the exterior of the

20 items the legend “PROTECTED, SUBJECT TO PROTECTIVE ORDER,

21 PRODUCED BY [PARTY NAME] IN NOOHI v. JJCI” or

22 “PROTECTED—ATTORNEY EYES ONLY, PRODUCED BY [PARTY

23 NAME] IN NOOHI v. JJCI.” If feasible, the legend shall identify the

24 portions constituting Confidential Materials.

25 g. Confidential Material Disclosed by a Non-Party.

26 i. For thirty (30) days after a non-party makes disclosures in this

27 proceeding, the entire disclosure shall be treated as Confidential

28 Material under this Order. 1 ii. Within the 30-day period, the non-party or a Party in this action

2 may notify all other Parties that all or specific portions of the

3 disclosure are Confidential Material. Thereafter, the designated

4 portions shall remain subject to this Order.

5 h. Disclosure of Confidential Material Without Confidential Designation.

6 i. Disclosure of Confidential Material without the required

7 confidentiality designation shall not be a waiver in whole or in part of

8 the Disclosing Party’s claim of confidentiality, either as to the specific

9 Confidential Material disclosed or as to the same or related subject

10 matter. This paragraph and its subparts shall be interpreted to provide

11 the maximum confidentiality protection allowed under applicable law.

12 ii. After discovering a failure to make a confidentiality designation,

13 the Disclosing Party may give written notice that the material is

14 Confidential Material. Receiving Parties then shall treat the material

15 as confidential until the parties agree otherwise, or the Court resolves

16 the issue. The Disclosing Party may reproduce the material with the

17 appropriate confidentiality legend, and each Receiving Party then shall

18 return or destroy all copies of the identified material, including that

19 held by persons to whom the Party distributed the material.

20 3. Required Handling of Confidential Material.

21 a. Confidential Material shall not be disclosed to anyone for any purpose

22 other than as required for the preparation of trial or any appeal in this action,

23 and, in that limited context, shall be disclosed only to Qualified Persons as

24 set out below. Confidential Material shall not be used for any business,

25 competitive or other non-litigation purpose.

26 i. Confidential Material in native format may be copied solely

27 (a) for use in a litigation-support application or (b) as specified in, and

28 for purposes set out in, the section of the ESI Protocol in this case 1 entitled “Use of Native Files in Proceedings in the Case.”

2 b. Each Party and its counsel, and each Qualified Person identified in

3 ¶¶ 4.a through 4.g and 5.a through 5.c (other than the Court), including any

4 person or entity acting on behalf of, or for the benefit of, that Qualified

5 Person, (i) shall not permit or enable unauthorized dissemination of

6 Confidential Material to anyone; (ii) shall take all necessary and prudent

7 measures to preserve the security of Confidential Material, including

8 measures to minimize risks of hacking of, and other unauthorized access to,

9 systems on which Confidential Material is stored or through which it is

10 transmitted; and (iii) shall physically store, maintain, and transmit

11 Confidential Material solely within the United States.

12 c. If Confidential Material is disclosed in a manner not authorized by this

13 Order, or if an attempt is made to hack or otherwise gain unauthorized access

14 to a system containing Confidential Material (jointly, “unauthorized

15 actions”), each Party or Qualified Person with knowledge of the unauthorized

16 actions immediately shall take necessary and prudent remedial measures to

17 prevent their reoccurrence and promptly shall inform the Designating Party

18 of such remedial measures and of all facts relating to the unauthorized

19 actions, including identification of all Confidential Material disclosed.

20 d. Nothing in this Order shall limit any Designating Party’s use of its

21 own documents, including disclosure of its own Confidential Material to any

22 person for any purpose.

23 e. Under this Order, Plaintiffs may use their own medical records and

24 disclose them to their physicians, and Defendants may use copies of them

25 and disclose them to other Qualified Persons.

26 4. Qualified Persons With Respect to Confidential Material. Subject to

27 Paragraph 2.g.i above, Confidential Material (as distinct from Confidential

28 Material—Attorney Eyes Only, covered in Paragraph 5 below) may be disclosed 1 only to the following Qualified Persons:

2 a. All Parties in this Action;

3 b. The Parties’ counsel, including counsel’s partners, employees, and

4 agents (e.g., outside copy services, litigation-support services, and

5 stenographers) retained in the Action;

6 c. Consultants (i.e., experts or professionals whom counsel has retained

7 to provide professional advice or services to assist in preparation for the trial

8 of the Action, whether or not designated as a testifying expert), but only if

9 (1) the Consultant has first signed a copy of Exhibit A, (2) the Consultant is

10 not a Competitor of the Designating Party, and (3) Counsel for the Party

11 retaining the Consultant, after duly diligent inquiry, does not know of any

12 instance in which the Consultant has been found to be in violation of the

13 terms of a protective order in any legal proceeding;

14 i. As used in this Order, “Competitor” means any manufacturer or

15 distributor of, or any entity involved in the sale of, skincare and

16 cosmetics products, including but not limited to moisturizers, and any

17 person who, upon reasonable and good faith inquiry, could be

18 determined to be employed by, to be a consultant doing research for,

19 or otherwise to be retained by any manufacturer or distributor of, or

20 any entity involved in the sale of, skincare and cosmetics products,

21 including but not limited to moisturizers.

22 d. A witness at a deposition or pre-trial hearing, if the witness will give

23 relevant testimony regarding the Confidential Material to be disclosed or if

24 disclosure is necessary to prepare the witness for the testimony, and only

25 after the witness has signed a copy of Exhibit A, except that a party’s treating

26 physicians to whom that party’s medical records may be shown need not sign

27 a copy of Exhibit A.

28 1 i. This provision does not preclude the Designating Party from

2 objecting to or moving to preclude disclosure to any witness, or from

3 seeking amendment of this provision in the future;

4 e. A person identified in the Confidential Material as an author, source,

5 addressee, or recipient of the material or who already has a copy of it;

6 f. Any other person mutually agreed upon among the Parties, but only if

7 that person has signed a copy of Exhibit A;

8 g. Any mediators or arbitrators selected to assist in resolution of this

9 matter, and their personnel actively engaged in assisting them, if they have

10 signed a copy of Exhibit A; and

11 h. The Court or any Court personnel, including any court reporters.

12 5. Qualified Persons With Respect to Confidential Material—Attorney

13 Eyes Only. Subject to Paragraph 3 above, Confidential Material—Attorney Eyes

14 Only may be disclosed only to the following Qualified Persons:

15 a. Counsel of record in this action, including counsel’s partners,

16 employees, and agents (e.g., outside copy services, litigation-support

17 services, and stenographers) retained in the Action;

18 b. Any individual Party, if the party’s counsel reasonably believes that

19 disclosure is necessary to prepare the case for trial;

20 c. The Qualified Persons described in Paragraphs 4.c through 4.h above.

21 6. Challenges to Designations.

22 a. If a Party challenges a designation, the challenged material shall be

23 treated as Confidential Material until the Parties agree otherwise in writing or

24 this Court issues an order that the material is not confidential.

25 b. To challenge confidentiality designations, a Party shall identify in

26 writing the specific Confidential Material (by Bates number, if possible) to

27 which each challenge pertains, and the specific bases for each challenge.

28 After receiving the challenges, the Designating Party shall have thirty (30) 1 days to state in writing whether the designations will be maintained or

2 withdrawn.

3 c. If the Parties cannot resolve all disputes after meeting and conferring,

4 the Designating Party shall file a motion to defend challenged designations.

5 Any disputes over the designation of Confidential Material are governed by

6 the procedures in Civil Local Rule 37.

7 7. Use of Confidential Material in Court Prior to Trial.

8 a. No Party may file with the Court Confidential Material of any other

9 Party except when required for motions or other pending matters in the

10 Action.

11 b. A Party that seeks to file under seal any Confidential Material must

12 comply with Civil Local Rule 79-5. Confidential Material may only be filed

13 under seal pursuant to a court order authorizing the sealing of the specific

14 Confidential Material at issue. If a Party’s request to file Confidential

15 Material under seal is denied by the court, then the Receiving Party may file

16 the information in the public record unless otherwise instructed by the court.

17 8. Orders, Subpoenas, or Requests from Non-Parties.

18 If a person or entity serves a Party in this action with a request, subpoena, or

19 order (“demand”) for disclosure of Confidential Material of a Designating Party,

20 the Party receiving the demand, if not prohibited under applicable law and within

21 forty-eight (48) hours of receipt, shall deliver a copy of the demand to the

22 Designating Party’s counsel. The Party shall not disclose any Confidential Material

23 prior to the date specified for disclosure. In its sole discretion and at its own cost,

24 the Designating Party may oppose or seek to limit the demand in any legal manner.

25 The Party who received the demand shall not oppose or otherwise interfere with the

26 Designating Party’s actions.

27 9. Redactions.

28 a. Prior to any discovery-related disclosure or production, the Producing 1 Party may redact information or material that is protected from disclosure by

2 applicable privilege or immunity (see Exhibit B of this Order), that is

3 governed by any applicable privacy law or regulation, that contains

4 commercially sensitive or proprietary non-responsive information, or that

5 any Order entered in this Action allows to be redacted. The Producing Party

6 also may withhold entire non-responsive attachments in a document family

7 and may produce slipsheets in their place.

8 b. Methods of Redaction.

9 i. Each redaction in a TIFF-image shall be indicated clearly on the

10 image as being based on “Privilege” or “Other.”

11 ii. For native files requiring redaction, redacted text shall be

12 replaced with the terms “Privilege” or “Other,” and the Producing

13 Party shall produce the redacted file either in native format or in an

14 authorized TIFF-image format.

15 iii. For metadata fields requiring redaction, field content shall be

16 replaced by the term “Redacted,” and the modified field shall be

17 included in any required .dat file.

18 c. The terms of ¶ 2.g above (Confidential Material) and of Exhibit B, ¶ 3

19 (privileged information) shall apply to any unintentional failure to redact

20 information.

21 10. Disposition of Confidential Material.

22 a. After final disposition of any appeals or after the time for filing any

23 appeal has passed, each Party in the action promptly shall return to the

24 Designating Party its Confidential Material (including on any litigation-

25 support application or in the possession, custody, or control of any person to

26 whom the Party distributed Confidential Material), shall destroy it, or

27 otherwise shall comply with an applicable order of the Court. Within thirty

28 (30) days of any such action, the Party shall certify in writing to the 1 Designating Party that the required return or destruction has been completed.

2 b. As exceptions to the above requirements,

3 i. Counsel may retain Confidential Material in copies of pleadings,

4 motions, or other court-filed papers, in official transcripts and exhibits

5 thereto, and in attorney work product, including counsels’ email and

6 document management systems. Counsel shall continue to treat all

7 such materials as Confidential Material pursuant to the requirements of

8 this Order.

9 ii. Confidential Material stored on backup storage media is

10 sequestered. If such data is restored from backup media, the Receiving

11 Party or its agent must promptly return or destroy the restored

12 Confidential Material and provide the certification required in ¶ 10.a

13 above.

14 iii. This Order shall continue to apply to any such materials retained

15 by counsel.

16 11. Order Survives Termination of Action.

17 This Order constitutes an enforceable agreement between the Parties, their

18 agents, and their attorneys and shall be binding after termination of this action. To

19 enforce this Order, the Court shall retain jurisdiction over any person or entity in

20 receipt of Confidential Material.

21

22 [remainder of page intentionally left blank]

23

24

25

26

27

28 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 Dated: June 11, 2021 MATTHEW D. POWERS HANNAH CHANOINE 3 E. CLAY MARQUEZ O’MELVENY & MYERS LLP 4 By: /s/ E. Clay Marquez 5 E. Clay Marquez Attorneys for Defendant 6 JOHNSON AND JOHNSON CONSUMER INC. 7 8 Dated: June 11, 2021 TODD M. FRIEDMAN ADRIAN BACON 9 MEGHAN GEORGE LAW OFFICES OF TODD M. 10 FRIEDMAN, P.C. 11 By: /s/ Meghan George Meghan George 12 Attorneys for Plaintiff 13 NARGUESS NOOHI 14 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 15 16 Dated: June __1_4, 2021 _________________________________ 17 HONORABLE JOHN E. McDERMOTT United States Magistrate Judge 18 19 SIGNATURE ATTESTATION 20 I hereby attest that the other signatories listed, on whose behalf the filing is 21 submitted, concur in the filing’s content and have authorized the filing. 22 23 Dated: June 11, 2021 O’MELVENY & MYERS LLP 24 By: /s/ E. Clay Marquez 25 E. Clay Marquez 26 Attorneys for Defendant JOHNSON AND JOHNSON 27 CONSUMER INC. 28 1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3 WESTERN DIVISION

4 NARGUESS NOOHI, individually Case No. 2:20-cv-03575-TJH-JEM 5 and on behalf of other members of the general public similarly situated,

6 ENDORSEMENT OF PROTECTIVE Plaintiff, ORDER 7 v. 8 JOHNSON & JOHNSON 9 CONSUMER, INC., DOES 1-100, 10 INCLUSIVE. Defendant. 11

12

13 EXHIBIT A

14 I hereby attest that I understand that information or documents designated as

15 Confidential Material are provided to me subject to the Stipulated Protective Order

16 dated June ___, 2021 (the “Order”), in the above-captioned litigation (“Litigation”);

17 that I have been given a copy of and have read the Order; and that I agree to be

18 bound by its terms. I also understand that my signature below indicates my

19 agreement to be bound by the Order and is a prerequisite to my review of any

20 information or documents designated as Confidential Material pursuant to the

21 Order.

22 I certify that I am not a Competitor, as defined in the Order.

23 I further agree that I shall not use Confidential Material for any purpose other

24 than as authorized in the Order and that, except as explicitly authorized in the

25 Order, I shall not disclose Confidential Material, in any form whatsoever, to others.

26 I further agree to return or destroy Confidential Material in my possession,

27 custody, or control in the manner and time specified by the Order.

28 I further agree and attest to my understanding that my obligation to honor the 1 confidentiality of such Confidential Material will continue even after this Litigation

2 concludes.

3 I further agree and attest to my understanding that, if I fail to abide by the

4 terms of the Order, I may be subject to sanctions, including contempt of court, for

5 such failure. I agree to be subject to the jurisdiction of the above-identified Court

6 for the purposes of any proceedings relating to enforcement of the Order. I further

7 agree to be bound by and to comply with the terms of the Order as soon as I sign

8 this Agreement, regardless of whether the Order has been entered by the Court.

9

10 Date: _________________

11

12 By: ________________________________________

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 1 EXHIBIT B—PRIVILEGED INFORMATION

2 This Exhibit is Exhibit B to the Stipulated Protective Order dated June ___,

3 2021 (the “Order”), in the above-captioned litigation (“Litigation”) and shall be

4 deemed to be incorporated in the Order as if set forth there in full.

5 1. General Principles.

6 a. A party may withhold from production information or documents on

7 the grounds of attorney-client privilege, physician-patient privilege, work

8 product protection, or any other applicable privilege or protection under law

9 or regulation (“Privileged Information”).

10 b. The party asserting a privilege for material shall provide privilege

11 log(s) explicitly identifying the privilege asserted for the material and

12 containing information sufficient to enable the opposing party to assess the

13 applicability of the privilege. Fed. R. Civ. P. 26(b)(5).

14 i. A privilege log should “describe the nature of the documents,

15 communications, or tangible things not produced or disclosed—and do

16 so in a manner that, without revealing information itself privileged or

17 protected, will enable other parties to assess the claim.”

Rule

18 26(b)(5)(A)(ii).

19 ii. “The rule does not attempt to define for each case what

20 information must be provided when a party asserts a claim of privilege

21 or work product protection. Details concerning time, persons, general

22 subject matter, etc., may be appropriate if only a few items are

23 withheld, but may be unduly burdensome when voluminous

24 documents are claimed to be privileged or protected, particularly if the

25 items can be described by categories.” Committee Note on Rule

26 26(b)(5), 1993 Comments.

27 2. Specific Privilege Log Protocols.

28 a. Privilege logs provided in lieu of producing requested documents shall 1 be produced no more than ninety (90) days after the date upon which the

2 documents would have been required to be produced. Privilege logs shall be

3 produced in native Excel format.

4 b. No Party shall be required to list on a privilege log privileged or work-

5 product documents prepared for the prosecution or defense of this action or

6 constituting or disclosing communications within clients or between clients

7 and their counsel related to this action.

8 c. With respect to partially privileged documents produced in redacted

9 form, and in lieu of listing such produced documents individually on the

10 privilege log, a Party shall provide, as an appendix to the privilege log, an

11 Excel-format listing of the beginning production-Bates-number of each such

12 produced redacted document and the basis of the claim for the redaction.

13 d. If a document containing Privileged Information is part of an email

14 thread as described in the ESI Protocol in this action, a Producing Party shall

15 list on the privilege log only the most-inclusive email in the thread and shall

16 include in a separate column on the log all information in the

17 ALL_PARTICIPANTS field for that email.

18 e. Agreed-Upon Categories of Privileged Documents.

19 i. When a party asserting that a document constitutes or contains

20 privileged information reasonably determines that the document is

21 within one of the following categories, the party shall list on the

22 privilege log the category number for that document. The parties

23 agree that, for documents reasonably assigned to one of the following

24 categories, the effort to review and prepare a description of the nature

25 and purpose of the communication is unduly expensive, will not result

26 in substantive benefit to any party, and is not proportional to the claims

27 and defenses in the action.

28 1 ii. The agreed-upon categories are:

2 (1) Communications involving outside counsel (a) seeking or

3 providing legal advice or (b) seeking or providing information

4 required by counsel to represent the client;

5 (2) Emails, with attachments, from an attorney (a) providing

6 legal advice or (b) seeking information required by the attorney

7 to represent the client;

8 (3) Emails, with attachments, to an attorney (attorney in the

9 TO field) (a) seeking legal advice or (b) identifying or providing

10 information required by the attorney to represent the client;

11 (4) Emails, with attachments, copied to an attorney (attorney

12 in the CC field) (a) seeking or identifying a request for legal

13 advice or (b) identifying or providing information required by

14 the attorney to represent the client;

15 (5) Documents (not attached to emails) prepared or edited by

16 an attorney in representing the client;

17 (6) Documents (not attached to emails) prepared for or edited

18 for review by an attorney in representing the client;

19 (7) Emails between non-attorneys (a) identifying legal advice

20 of, or a request for legal advice from, counsel, (b) identifying a

21 request by counsel for information required to represent the

22 client, or (c) identifying or constituting information provided or

23 to be provided to counsel and required by counsel to represent

24 the client;

25 (8) Documents referring to legal advice; and

26 (9) Status of legal matters, e.g., legal settlements.

27 f. If application of Rule 26(b)(5) results in a document-by-document

28 listing of some or all privileged Information, the entry for each document 1 shall list the following information available for the document:

2 i. the beginning Bates number of the document;

3 ii. the nature of the privilege asserted (e.g., “attorney- client

4 privilege” or “attorney work product”);

5 iii. if known, name(s) of the author(s) of the document;

6 (1) If a document is an email thread, the name of the author

7 on the most inclusive email in the thread shall be listed;

8 iv. if known, name(s) of the recipient(s) (i.e., persons shown in the

9 TO, CC, and BCC fields)

10 (1) If the document is an email chain, name(s) of the

11 recipient(s) on the most recent email in the chain shall be listed,

12 and the content of the ALL_PARTICIPANTS field shall be set

13 out in a separate column;

14 v. if known, the date the document was created, sent (if

15 applicable), and last modified (if applicable);

16 vi. the document type by file extension;

17 vii. the custodian(s) of the document; and

18 viii. the category (as identified in ¶ 2.e.ii. immediately above) to

19 which the document reasonably can be assigned or, if the document

20 cannot reasonably be so assigned, a brief description of the nature and

21 purpose of the communication (e.g., communication seeking legal

22 advice, communication providing legal advice, communication

23 regarding legal advice provided by counsel), as well as the general

24 subject matter of the communication without disclosing any privileged

25 or protected information, in a manner that will enable other parties to

26 assess the claim.

27 3. Disclosed Privileged Information.

28 a. The Parties have agreed that, in this lawsuit, they do not intend to 1 disclose Privileged Information. Pursuant to Federal Rule of Evidence

2 502(d) and

, any disclosure of Privileged Information

3 (“Disclosed Privileged Information”) shall not constitute in this or any other

4 action a waiver or forfeiture of any privilege otherwise attaching to the

5 Disclosed Privileged Information and its subject matter.

6 b. Nothing in this order overrides any attorney’s ethical responsibilities to

7 refrain from examining or disclosing materials that the attorney knows or

8 reasonably should know to be privileged and to inform the Disclosing Party

9 that such materials have been produced.

10 c. Any party receiving materials that reasonably appear to be Privileged

11 Information shall not copy, distribute, or otherwise use such materials in any

12 manner and shall provide prompt notice to the Producing Party to afford an

13 opportunity to request return of the materials.

14 d. If a Disclosing Party notifies the Receiving Party that Privileged

15 Information has been disclosed,

16 i. the Receiving Party shall not, from that point onward, copy,

17 distribute, or otherwise use in any manner the Disclosed Privileged

18 Information, unless the Parties agree, or the Court orders, otherwise;

19 ii. the Receiving Party shall instruct all persons to whom the

20 Receiving Party has disseminated the Disclosed Privileged Information

21 that such information is subject to this Order and may not be copied,

22 distributed, or otherwise used; and

23 iii. the Receiving Party and all persons notified as set out in the

24 preceding subparagraph shall, within ten (10) court days,

25 (1) return, destroy, or delete all Disclosed Privileged

26 Information and all notes or other work product revealing its

27 content in the possession, custody, or control of the Receiving

28 Party, its attorneys, or any person to whom the Party provided 1 the Disclosed Privileged Information, and

2 (2) provide a certification of counsel that all Disclosed

3 Privileged Information has been returned, destroyed, or deleted.

4 (3) For purposes of this Order, Disclosed Privileged

5 Information that is not reasonably accessible under Federal

6 Rules of Civil Procedure 26(b)(2)(B) because stored by the

7 Receiving Party on backup storage media is deemed to be

8 sequestered. Should such data be retrieved, the Receiving Party

9 must promptly take steps to delete the restored Disclosed

10 Privileged Information.

11 e. To contest the claim of attorney-client privilege or work product

12 protection, the Receiving Party may—within five (5) business days of receipt

13 of the notice of disclosure—move the Court for an Order compelling

14 production of the contested material (“Disclosure Motion”).

15 i. The Disclosing Party shall retain the burden of establishing its

16 privilege or work product claims.

17 ii. The motion shall be filed or lodged conditionally under seal; any

18 Disclosed Privileged Information attached to or disclosed in the

19 motion shall be deemed submitted solely for the Court’s in camera

20 review.

21 iii. The motion shall not assert as a ground for entry of such an

22 Order the fact or circumstances of the production of Disclosed

23 Privileged Information.

24 iv. Pending resolution of the motion, the Receiving Party must not

25 use the contested information in any way or disclose it to any person

26 other than those required by law to be served with a copy of the sealed

27 motion.

28 f. Rule 502. Federal Rule of Evidence (“FRE”) 502(b) is inapplicable to 1 Disclosed Privileged Information, which shall receive the maximum

2 protection afforded by FRE 502(d). Under FRE 502(d) and

Code § 1738, this Order shall be enforceable and granted full faith and

4 credit in all other state and federal proceedings. Any subsequent

5 conflict of law analysis shall apply the law most protective of privilege

6 and work product.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28