Free Order - District Court of California - California

Case 4:07-mc-80231-SBA

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LATHAM & WATKINS LLP John D. Minton (Bar No. 223823) 140 Scott Drive Menlo Park, CA 94025 Telephone: (650) 328-4600 Facsimile: (650) 463-2600 Email: [email protected] Attorneys for Defendant MICHAEL ZACCARO MYERS, HAWLEY, MORLEY, MYERS & MCDONNELLPaul I. Myers III (Bar No. 72067) 166 Main Street Los Altos, CA 94022 Telephone: (650) 948-1600 Fax: (650) 949-3581 Email: [email protected] Attorneys for Third Party Respondent EXP PHARMACEUTICAL SERVICES CORP. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION PHARMACEUTICAL INVENTORIES, INC. d/b/a PHARMACEUTICAL RETURNS SERVICE, Plaintiff, v. MICHAEL ZACCARO and RETURNS R US INC. d/b/a PHARMA LOGISTICS, LTD., Defendants. CASE NO. 07-MC-80231-SBA (MEJ) STIPULATION AND [PROPOSED] ORDER REGARDING DEFENDANT MICHAEL ZACCARO'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THIRD PARTY EXP PHARMACEUTICAL SERVICES CORP. Date: Time: Courtroom: Judge: n/a n/a B, 15th Floor Hon. Maria-Elena James

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ATTORNEYS AT LAW SILICON VALLEY

STIPULATION AND [PROPOSED] ORDER REGARDING DEFENDANT MICHAEL ZACCARO'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THIRD PARTY EXP PHARMACEUTICAL SERVICES CORP.

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ATTORNEYS AT LAW SILICON VALLEY

STIPULATION WHEREAS, On or about July 13, 2007, defendant Michael Zaccaro ("Zaccaro") served a subpoena upon EXP Pharmaceutical Services Corp. ("EXP"), a non-party in the underlying action pending in the United States District Court for the Northern District of Illinois; WHEREAS, The subpoena directed EXP to produce certain documents and designate a witness to testify regarding the authenticity of the documents it produced; WHEREAS, EXP subsequently complied in part with the subpoena by producing a subset of the documents sought by Zaccaro, but objected to production of certain other relevant documents; WHEREAS, The parties met and conferred in an attempt to resolve their dispute regarding production of the remaining documents sought by the subpoena but were unable to do so; WHEREAS, On October 1, 2007, Zaccaro moved for an order under Rule 45(c)(2)(B) of the Federal Rules of Civil Procedure seeking to compel EXP to produce the documents at issue and requiring EXP to designate a witness for deposition who could verify that the documents EXP produced are genuine business records of the company; WHEREAS, EXP maintained its objection to production of the documents sought by Zaccaro's motion and, on October 16, 2007, filed a brief and supporting evidence in opposition to Zaccaro's motion; WHEREAS, Upon the Court's referral of Zaccaro's motion to the Honorable Maria Elena-James, the motion was ordered taken off calendar and the parties were ordered to further meet and confer regarding the motion;

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STIPULATION AND [PROPOSED] ORDER REGARDING DEFENDANT MICHAEL ZACCARO'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THIRD PARTY EXP PHARMACEUTICAL SERVICES CORP.

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ATTORNEYS AT LAW SILICON VALLEY

WHEREAS, The parties met and conferred and reached agreement on a procedure that the parties believe will obviate the need for further motion practice; WHEREAS, Pursuant to the agreement reached by the parties, in lieu of producing the documents sought by Zaccaro in his motion to compel and in satisfaction of the subpoena: 1. EXP will provide to Zaccaro a declaration signed by its Chief Executive Officer,

Gus Changaris, that describes the 12 categories of screen prints sought by Zaccaro and indicates how EXP's software system fulfills the general functionality identified in those categories, as applicable. The declaration shall be in substantially the same form as the unsigned declaration provided to counsel for Zaccaro on November 20, 2007; 2. EXP will produce Mr. Changaris for a deposition at which he will testify about

the twelve categories of information set forth in his declaration and authenticate and describe the nature of the documents previously produced by EXP; 3. The declaration of Mr. Changaris will be marked "HIGHLY CONFIDENTIAL,

ATTORNEY'S EYES ONLY, CONFIDENTIAL INFORMATION OF THIRD PARTY EXP PHARMACEUTICAL SERVICES, CORP." pursuant to a Restricting Order issued in the primary proceeding (Northern District of Illinois); 4. The Restricting Order will apply to EXP with the following modifications: a. Any party seeking to disclose information that EXP designates "HIGHLY

CONFIDENTIAL: ATTORNEYS' EYES ONLY ("EXP's Confidential Information") to an independent consultant or expert is required to disclose to EXP the identity of the independent consultant or expert to whom the information is being disclosed; b. EXP shall be given a copy of the Restricting Agreement signed by any

independent consultant or expert that receives EXP's Confidential Information; c. The identity of the independent consultant or expert shall be disclosed

only to EXP and not to any other party in the Underlying Litigation; and d. The disclosure of the identity of the independent consultant or expert to 2
STIPULATION AND [PROPOSED] ORDER REGARDING DEFENDANT MICHAEL ZACCARO'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THIRD PARTY EXP PHARMACEUTICAL SERVICES CORP.

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ATTORNEYS AT LAW SILICON VALLEY

EXP shall not constitute a waiver of the work product privilege. NOW, THEREFORE, The parties hereby STIPULATE that in lieu of producing the documents sought by Zaccaro in his motion to compel and in satisfaction of the subpoena: 1. EXP will provide to Zaccaro a declaration signed by its Chief Executive Officer,

Gus Changaris, that describes the 12 categories of screen prints sought by Zaccaro and indicates how EXP's software system fulfills the general functionality identified in those categories, as applicable. The declaration shall be in substantially the same form as the unsigned declaration provided to counsel for Zaccaro on November 20, 2007; 2. EXP will produce Mr. Changaris for a deposition at which he will testify about

the twelve categories of information set forth in his declaration and authenticate and describe the nature of the documents previously produced by EXP; 3. The declaration of Mr. Changaris will be marked "HIGHLY CONFIDENTIAL,

ATTORNEY'S EYES ONLY, CONFIDENTIAL INFORMATION OF THIRD PARTY EXP PHARMACEUTICAL SERVICES, CORP." pursuant to a Restricting Order issued in the primary proceeding (Northern District of Illinois); 4. The Restricting Order will apply to EXP with the following modifications: a. Any party seeking to disclose information that EXP designates "HIGHLY

CONFIDENTIAL: ATTORNEYS' EYES ONLY ("EXP's Confidential Information") to an independent consultant or expert is required to disclose to EXP the identity of the independent consultant or expert to whom the information is being disclosed; b. EXP shall be given a copy of the Restricting Agreement signed by any

independent consultant or expert that receives EXP's Confidential Information; c. The identity of the independent consultant or expert shall be disclosed

only to EXP and not to any other party in the Underlying Litigation; and d. The disclosure of the identity of the independent consultant or expert to

EXP shall not constitute a waiver of the work product privilege.

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STIPULATION AND [PROPOSED] ORDER REGARDING DEFENDANT MICHAEL ZACCARO'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THIRD PARTY EXP PHARMACEUTICAL SERVICES CORP.

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Dated: January 4, 2007

Respectfully submitted, LATHAM & WATKINS LLP By: /s/ John D. Minton

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ATTORNEYS AT LAW SILICON VALLEY

Attorneys for Defendant MICHAEL ZACCARO Dated: January 4, 2007 Respectfully submitted, MYERS, HAWLEY, MORLEY, MYERS & MCDONNELL By: /s/ Paul I. Myers III

Attorneys for Third Party Respondent EXP PHARMACEUTICAL SERVICES CORP.

Filer's Attestation: Pursuant to General Order No. 45, § X(B), I attest that concurrence in the filing of this document has been obtained from its signatory. Dated: January 4, 2007 /s/ John D. Minton

[PROPOSED] ORDER The Court having considered the parties' stipulation, and good cause appearing, IT IS HEREBY ORDERED that in lieu of producing the documents sought by Zaccaro in his motion to compel and in satisfaction of the subpoena: 1. EXP will provide to Zaccaro a declaration signed by its Chief Executive Officer,

Gus Changaris, that describes the 12 categories of screen prints sought by Zaccaro and indicates how EXP's software system fulfills the general functionality identified in those categories, as applicable. The declaration shall be in substantially the same form as the unsigned declaration provided to counsel for Zaccaro on November 20, 2007;

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STIPULATION AND [PROPOSED] ORDER REGARDING DEFENDANT MICHAEL ZACCARO'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THIRD PARTY EXP PHARMACEUTICAL SERVICES CORP.

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2.

EXP will produce Mr. Changaris for a deposition at which he will testify about

the twelve categories of information set forth in his declaration and authenticate and describe the nature of the documents previously produced by EXP; 3. The declaration of Mr. Changaris will be marked "HIGHLY CONFIDENTIAL,

ATTORNEY'S EYES ONLY, CONFIDENTIAL INFORMATION OF THIRD PARTY EXP PHARMACEUTICAL SERVICES, CORP." pursuant to a Restricting Order issued in the primary proceeding (Northern District of Illinois); 4. The Restricting Order will apply to EXP with the following modifications: a. Any party seeking to disclose information that EXP designates "HIGHLY

CONFIDENTIAL: ATTORNEYS' EYES ONLY ("EXP's Confidential Information") to an independent consultant or expert is required to disclose to EXP the identity of the independent consultant or expert to whom the information is being disclosed; b. EXP shall be given a copy of the Restricting Agreement signed by any

independent consultant or expert that receives EXP's Confidential Information; c. The identity of the independent consultant or expert shall be disclosed

only to EXP and not to any other party in the Underlying Litigation; and d. The disclosure of the identity of the independent consultant or expert to

EXP shall not constitute a waiver of the work product privilege. PURSUANT TO STIPULATION, IT IS SO ORDERED.
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ATTORNEYS AT LAW SILICON VALLEY

February 4, 2008 DATED: __________________

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STIPULATION AND [PROPOSED] ORDER REGARDING DEFENDANT MICHAEL ZACCARO'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THIRD PARTY EXP PHARMACEUTICAL SERVICES CORP.

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