In re DermTech Inc. Securities Litigation

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IN RE DERMTECH INC. SECURITIES
LITIGATION
Case No.: 23-cv-01885-DMS-JLB
ORDER (1) GRANTING AMENDED
JOINT MOTION FOR ENTRY OF
STIPULATED PROTECTIVE
ORDER (ECF NO. 75); AND (2)
DENYING AS MOOT JOINT
MOTIONS FOR ENTRY OF
AMENDED STIPULATED
PROTECTIVE ORDER (ECF NOS.
66, 73)
Before the Court is an Amended Joint Motion for Entry of Amended Stipulated
Protective Order (“Amended Joint Motion”) (ECF No. 75) and two prior related Joint
Motions (ECF Nos 66, 73). 	Good cause appearing, the Amended Joint Motion is
GRANTED, and the prior Joint Motions are DENIED AS MOOT. 	Accordingly, the
Court enters the following Amended Stipulated Protective Order, which supersedes the
prior Stipulated Protective Order (ECF No. 60):
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///
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AMENDED STIPULATED PROTECTIVE ORDER
The Court 	recognizes 	that 	at 	least 	some of the documents 	and 	information
(“materials”) being sought through discovery in the above-captioned action are, for
competitive reasons, normally kept confidential by the parties. The parties have agreed to
be bound by the terms of this Stipulated Protective Order (“Order”) in this action.
The materials to be exchanged throughout the course of the litigation between the
parties may contain trade secret or other confidential research, technical, cost, price,
marketing or other commercial information, as is contemplated by Federal Rule of Civil
Procedure 26(c)(1)(G). 	The purpose of this Order is to protect the confidentiality of such
materials as much as practical during the litigation.
In addition, certain of the materials that may be exchanged through the course of the
litigation between the parties may include “protected health information” as defined in 45
C.F.R. § 160.103. Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and the
Health Insurance Portability and Accountability Act of 1996, as amended by the Health
Information Technology for Economic and Clinical Health Act, including all applicable
regulations issued by the Secretary of the United States Department of Health and Human
Services, including specifically 45 C.F.R. § 164.512(e)(1), the undersigned parties agree
to and the Court finds good cause for the issuance of a qualified protective order to the
extent any protected health information is not redacted from such materials:
THEREFORE:
DEFINITIONS
1. 	The term “confidential information” will mean and include information
contained or disclosed in any materials, including documents, portions of documents,
answers 	to 	interrogatories 	and 	requests 	for 	admissions, 	trial 	testimony, 	deposition
testimony, and transcripts of trial testimony and depositions, including data, summaries,
and compilations derived therefrom that is deemed to be confidential information by any
party to which it belongs.
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2. 	The 	term 	“materials” 	will 	include, 	but 	is 	not 	limited 	to: 	documents;
correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other
material that identify customers or potential customers; price lists or schedules or other
matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks;
contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk
diaries; appointment books; expense accounts; recordings; photographs; motion pictures;
compilations from which information can be obtained and translated into reasonably usable
form through detection devices; sketches; drawings; notes (including laboratory notebooks
and records); reports; instructions; disclosures; other writings; models, prototypes, and
other physical objects.
3. 	The term “counsel” will mean outside counsel of record, and other attorneys,
paralegals, secretaries, and other support staff employed in the law firms identified below:
a. 	Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.
b. 	Glancy Prongay & Murray LLP
4. 	The term “Designating Party” means any party or non-party that discloses or
produces any information to another party in connection with the above-captioned action
that is designated under the terms of this Order.
5. 	The term “Receiving Party” means any party who receives information from
a Designating Party or a non-party in connection with the above-captioned action that is
designated under the terms of this Order.
GENERAL RULES
6. 	Each party or subpoenaed non-party to this litigation that produces or
discloses any materials, answers to interrogatories and requests for admission, trial
testimony, deposition testimony, and transcripts of trial testimony and depositions, or
information that the Designating Party believes should be subject to this Order may
designate the same as “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL
ONLY.”
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a. 	Designation as “CONFIDENTIAL”: A party or non-party subject to
this Order may only designate documents or other information in this action as
“CONFIDENTIAL” if the designating party or non-party has an articulable, good
faith basis to believe that each document or other information designated as
confidential qualifies for protection under Federal Rule of Civil Procedure 26(c).
b. 	Designation as “CONFIDENTIAL – FOR COUNSEL ONLY”: A
Designating 	Party 	may 	designate 	information 	as 	“CONFIDENTIAL 	– 	FOR
COUNSEL ONLY” only if, in the good faith belief of the Designating Party and its
counsel, the information is among that considered to be most sensitive by the
Designating Party including but not limited to trade secret or other confidential
research, development, technical, commercial, financial or pricing information, or
such other proprietary or sensitive business and commercial information that is not
publicly available, the disclosure of which could reasonably result in commercial,
financial, or business harm.
7. 	In the event the Designating Party or non-party elects to produce materials for
inspection, no marking need be made by the Designating Party or non party in advance of
the initial inspection. For purposes of the initial inspection, all materials produced will be
considered as “CONFIDENTIAL – FOR COUNSEL ONLY,” and must be treated as such
pursuant to the terms of this Order. Thereafter, upon selection of specified materials for
copying by the inspecting party, the Designating Party or non-party must, within a
reasonable time prior to producing those materials to the inspecting party, mark the copies
of those materials that contain confidential information with the appropriate confidentiality
marking of “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL ONLY.”
Nothing in this paragraph shall preclude the parties from negotiating and agreeing to a
different protocol for the inspection of any materials or things containing confidential
information.
8. 	Whenever a deposition taken on behalf of any party involves a disclosure of
confidential information of any Designating Party:
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a. 	the deposition or portions of the deposition must be designated as
containing confidential information subject to the provisions of this Order; such
designation must be made on the record whenever possible, but a party may
designate portions of depositions as containing confidential information after
transcription of the proceedings; a party will have until 14 calendar days after receipt
of the deposition transcript to inform the other party or parties to the action of the
portions 	of 	the 	transcript 	to 	be 	designated 	“CONFIDENTIAL” 	or
“CONFIDENTIAL – FOR COUNSEL ONLY.”
b. 	the Designating Party will have the right to exclude from attendance at
the deposition, during such time as the confidential information is to be disclosed,
any person other than the deponent, counsel (including their staff and associates),
the court reporter, and the person(s) agreed upon pursuant to Paragraph 11 below;
and
c. 	the originals 	of 	the deposition 	transcripts 	and 	all 	copies 	of 	the
deposition must bear the legend “CONFIDENTIAL” or “CONFIDENTIAL – FOR
COUNSEL ONLY,” as appropriate, and the original or any copy ultimately
presented to a court for filing must not be filed unless it can be accomplished under
seal, identified as being subject to this Order, and protected from being opened
except by order of the Court.
9. 	All 	confidential 	information 	designated 	as 	“CONFIDENTIAL” 	or
“CONFIDENTIAL – FOR COUNSEL ONLY” must not be disclosed by the Receiving
Party to anyone other than those persons designated within this Order and must be handled
in the manner set forth below and, in any event, must not be used for any purpose other
than in connection with this litigation, unless and until such designation is removed either
by agreement of the parties or by order of the Court.
///
///
///
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ACCESS TO “CONFIDENTIAL – FOR COUNSEL ONLY”
INFORMATION
10. 	Information designated “CONFIDENTIAL – FOR COUNSEL ONLY” must
be viewed only by counsel for the Receiving Party (as defined in Paragraph 3); witnesses
(pursuant to the terms of Paragraph 10(a)-(b)); independent experts; a party’s insurer(s)
(including counsel for and/or employees of a party’s insurer(s)) (pursuant to the terms of
Paragraph 10(d)); and the individuals described in Paragraphs 10(e)-(j), under the
conditions set forth in this Paragraph and Subparagraphs. For avoidance of doubt, nothing
herein shall restrict a Designating Party’s use or disclosure to a witness, expert, or other
person of their own confidential information that has been designated “CONFIDENTIAL
– FOR COUNSEL ONLY” for purposes of this litigation.
a. 	Witnesses: 	A 	witness 	who 	has 	been 	subpoenaed 	or 	noticed 	for
deposition, trial testimony, or other court proceeding in the above-captioned case not
otherwise authorized to view the information designated “CONFIDENTIAL – FOR
COUNSEL ONLY” in question, has the right to review such information if it is used
by a Receiving Party during that witness’s testimony at a deposition, hearing, or trial
in the above-captioned case, provided that either (i) counsel for the Designating
Party authorizes disclosure of the information to the witness prior to its disclosure;
(ii) the name of the witness appears on the face of the document (or within its
accompanying metadata) as either as its originator, author, or a recipient of that
version of the document; or (iii) the witness is a current employee of the Designating
Party..
b. 	Any 	witness 	authorized 	pursuant 	to 	paragraph 	10(a) 	to 	review
information designated “CONFIDENTIAL – FOR COUNSEL ONLY” may only
review such information provided that:
i. 	the 	disclosure 	is 	made 	for 	the 	purpose 	of 	advancing 	the
Designating Party’s claims or defenses, and for no other purposes;
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ii. 	the witness is not permitted to retain the information designated
“CONFIDENTIAL – FOR COUNSEL ONLY” after the witness is examined
regarding the confidential information, unless the witness was previously
authorized to possess the information prior to the examination;
iii. 	the witness signs the Exhibit A attached to this Order; and
iv. 	the witness is explicitly informed by counsel for the party
seeking 	to 	use 	the 	information 	designated 	“CONFIDENTIAL 	– 	FOR
COUNSEL ONLY” that signing Exhibit A means that the witness is forbidden
from 	disclosing 	the 	information 	designated 	“CONFIDENTIAL 	– 	FOR
COUNSEL ONLY” except as permitted under this Order and that he or she is
subject to the Court’s jurisdiction for the purposes of enforcing this Order.
c. 	Independent Experts: Any independent expert (testifying or otherwise)
who is to receive or review confidential information must sign a copy of the form
attached hereto as Exhibit A in advance of seeing or receiving such confidential
information. The right of any independent expert, including support staff employed
by such expert, to receive confidential information designated “CONFIDENTIAL –
FOR COUNSEL ONLY” from a Receiving Party will be subject to the advance
approval of such expert by the other party or by permission of the Court. The party
seeking approval of an independent expert to access such confidential information
must provide the other party (excluding non-parties) with the name and curriculum
vitae of the independent expert. Any objection by the other party to an independent
expert receiving confidential information designated “CONFIDENTIAL – FOR
COUNSEL ONLY” must be made in writing within ten days following receipt of
the identification of the expert to whom access is proposed. Information designated
“CONFIDENTIAL – FOR COUNSEL ONLY” may be disclosed to an independent
expert if the ten-day period has passed and no objection has been made. 	The
approval of independent experts’ access to “CONFIDENTIAL – FOR COUNSEL
ONLY” information must not be unreasonably withheld by the other party;
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d. 	Employees of a Party’s Insurer: Relevant employees of any insurer to a
party may review information designated “CONFIDENTIAL – FOR COUNSEL
ONLY” to the extent that such disclosure is reasonably necessary for the prosecution
or defense of that party in this action, provided they have signed Exhibit A;
e. 	Special masters, mediators, or other third parties who are appointed by
the Court or retained by the parties for settlement purposes or resolution of discovery
or other disputes and their necessary personnel, provided each professional is bound
by written confidentiality obligations to protect the confidential information;
f. 	Persons engaged by a party’s counsel of record (as defined in Paragraph
3) to furnish litigation support services, such as, but not limited to, E-discovery
vendors, technological support staff, graphic consultants, jury consultants, and office
support staff in this action, provided each service provider is bound by written
confidentiality obligations to protect the confidential information;
g. 	Pursuant to the restrictions set forth in Paragraphs 10 and 11 of this
Order 	and 	provisions 	at 	Paragraph 	15 	regarding 	the 	sealing 	of 	confidential
information, officers of the Court, court reporters, and members of the jury; and
h. 	Stenographic 	(court 	reporters 	and 	videographers) 	and 	clerical
employees associated with the individuals identified in subparagraphs (c), (e), (f),
and (g) above;
i. 	Any other person agreed to by the Designating Party in writing; and
j. 	Any other person to whom the Court compels disclosure of the
designated “CONFIDENTIAL – FOR COUNSEL ONLY” or to whom disclosure is
required by law.
ACCESS TO CONFIDENTIAL INFORMATION
11. 	Information designated “CONFIDENTIAL” must be viewed only by:
(i) the individuals listed in Paragraph 10; (ii) a party who requires such access to
participate in litigation strategy, or settlement discussions with reference to this action; or
(iii) technical personnel of a party, in connection with this litigation, provided each such
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individual in subpart (iii) has read this Order in advance of disclosure and has executed a
copy of the form attached hereto as Exhibit A. For avoidance of doubt, nothing herein shall
restrict a Designating Party or non-party’s use or disclosure to a witness, expert, or other
person of their own confidential information that has been designated “CONFIDENTIAL”
for purposes of the litigation.
ADDITIONAL TERMS OF ACCESS
12. 	All 	information 	which 	has 	been 	designated 	as 	“CONFIDENTIAL” 	or
“CONFIDENTIAL – FOR COUNSEL ONLY” by a Designating party, and any and all
reproductions of that information, must be retained in the custody of the counsel for the
Receiving Party identified in Paragraph 3, except that independent experts, professionals
and/or service providers listed in Paragraph 10, Subparagraphs (c) through (i) authorized
to view such information under the terms of this Order may retain custody of copies such
as are necessary for their participation in this litigation and/or settlement discussions
related to the same. In addition and for avoidance of doubt, any other entities or persons
identified in Paragraph 10, subparagraph (g), including officers of the Court and members
of the jury, who are authorized to view confidential information under the terms of this
Order may also retain custody of copies to the extent necessary to perform their respective
functions, duties, and/or services in connection with this litigation.
13. 	Any party seeking to file documents under seal must comply with the
procedures set forth in the ECF Manual. Parties should not seek to file under seal entire
pleadings, or entire attachments, unless the party can establish that the entire
document satisfies the standard for sealing.
Unless the entire document satisfies the standard for sealing, a redacted version of
the document must be publicly filed on the docket with only those portions of the document
appropriately subject to filing under seal redacted. An application to file under seal should
specifically address the factual and legal basis for sealing each proposed redaction.
The party shall lodge the unredacted version of any filing in accordance with the
ECF Manual.
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If a party is seeking to file a document that contains information designated as
confidential by another party, the filing party must reach out to the designating party in
advance of filing the application to file under seal to obtain from the designating party the
legal basis for the confidential designation. The filing party must include the legal basis in
the application to file under seal. 	If any party opposes the application to file under seal,
that party must, within one court day, contact the chambers of the judge who will rule on
the application to notify the judge’s staff that an opposition to the application will be filed.
14. 	At any stage of these proceedings, any party may object to a designation of
materials 	as 	confidential 	information, 	including 	the 	level 	of 	designation 	as
“CONFIDENTIAL” versus “CONFIDENTIAL – FOR COUNSEL ONLY. 	The party
objecting to confidentiality must notify, in writing, counsel for the designating party of the
objected-to materials and the grounds for the objection. 	If the dispute is not resolved
consensually between the parties after meeting and conferring within 14 calendar days of
receipt of such a notice of objections, the parties may jointly request the Court’s assistance
with the dispute, in accordance with Judge Burkhardt’s Civil Chambers Rules. 	The
materials at issue must be treated as confidential information, as designated by the
designating party, until the Court has ruled on the objection or the matter has been
otherwise resolved.
15. 	All confidential information must be held in confidence by those inspecting
or receiving it and must be used only for purposes of this action. Counsel for each party,
and each person receiving confidential information, must take reasonable precautions to
prevent the unauthorized or inadvertent disclosure of such information. 	If confidential
information is disclosed to any person other than a person authorized by this Order, the
party responsible for the unauthorized disclosure must immediately bring all pertinent facts
relating to the unauthorized disclosure to the attention of the other parties and, without
prejudice to any rights and remedies of the other parties, make every effort to prevent
further disclosure by the party and by the person(s) receiving the unauthorized disclosure.
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16. 	No party will be responsible to another party for disclosure of confidential
information under this Order if the information in question is not labeled or otherwise
identified as such in accordance with this Order.
17. 	If a Designating Party, through inadvertence, produces any confidential
information without labeling or marking or otherwise designating it as such in accordance
with this Order, the Designating Party may give written notice to the Receiving Party that
the document or thing produced is deemed confidential information, and that the document
or thing produced should be treated as such in accordance with that designation under this
Order. The Receiving Party must treat the materials as confidential once the Designating
Party so notifies the Receiving Party. 	If the Receiving Party has disclosed the materials
before receiving the designation, the Receiving Party must notify the Designating Party in
writing of each such disclosure.
18. 	Nothing within this Order will prejudice the right of any party to (1) object to
the production of any discovery material on the grounds that the material is protected from
disclosure by the attorney client privilege, the work product doctrine, or any other privilege
or protection, or (2) if inadvertently produced, request the immediate destruction or return
of any such privileged or protected materials and produce a privilege log with respect to
the disclosed materials within thirty (30) calendar days of the party’s request to return or
destroy such documents. 	Pursuant to Rule 502(d) of the Federal Rules of Evidence,
nothing in this Order shall require disclosure of privileged information, and the production
of privileged information is not a waiver of the privilege or protection from discovery in
this case or in any other federal or state proceeding. 	This Order shall be interpreted to
provide the maximum protection allowed by Federal Rule of Evidence 502(d), and the
provisions of Rule 502(b) do not apply. 	Fed. R. Civ. P. 26(b)(5)(B) and the parties’
Stipulated Protocol for Discovery of Electronically Stored Information will govern the
proper procedure for the notification and return of privileged information when identified
by the Designating Party.
///
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19. 	Nothing in this Order will bar counsel from rendering advice to their clients
with respect to this litigation and, in the course thereof, relying upon any information
designated as confidential information, provided that the contents of the information must
not be disclosed.
20. 	This Order will be without prejudice to the right of any party to oppose
production of any information for lack of relevance or any other ground other than the mere
presence of confidential information. 	The existence of this Order must not be used by
either party as a basis for discovery that is otherwise improper under the Federal Rules of
Civil Procedure.
21. 	Nothing 	within 	this 	Order 	will 	be 	construed 	to 	prevent 	disclosure 	of
confidential information if such disclosure is required by law or by order of the Court.
22. 	Within sixty (60) days after the final disposition of this action, including any
and all appeals, each receiving party must return all materials containing confidential
information (“Confidential Material”) to the producing party or destroy such Confidential
Material. 	As used in this Paragraph, “all Confidential Material” includes all copies,
abstracts, compilations, summaries, and any other format reproducing or capturing any of
the Confidential Material. Whether the Confidential Material is returned or destroyed, the
receiving party must submit a written certification to the producing party (and, if not the
same person or entity, to the designating party) by the sixty (60) day deadline that (1)
identifies (by category, where appropriate) all the Confidential Material that was returned
or destroyed; and (2) affirms that the receiving party has not retained any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any of the
Confidential Material. Notwithstanding the foregoing, counsel for each party may retain
all pleadings, briefs, memoranda, motions, and other documents filed with the Court, as
well as trial, deposition, and hearing transcripts, legal memoranda, correspondence,
deposition and trial exhibits, expert reports, attorney work product, and consultant and
expert work product, that refer to or incorporate confidential information, and will continue
to be bound by this Order with respect to all such retained information. Further, attorney
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work product materials that contain confidential information need not be destroyed, but, if
they are not destroyed, the person in possession of the attorney work product will continue
to be bound by this Order with respect to all such retained information.
23. 	Absent an ex parte motion made within 10 calendar days of the termination
of the case, the parties understand that the Court will destroy any confidential documents
in its possession.
24. 	The restrictions and obligations set forth within this Order will not apply to
any information that:
a. 	the parties agree should not be designated confidential information;
b. 	the parties agree, or the Court rules, that confidential treatment is not
warranted;
c. 	the parties agree, or the Court rules, has become public knowledge other
than as a result of disclosure by the Receiving Party, its employees, or its agents in
violation of this Order; or
d. 	has come or will come into the Receiving Party’s legitimate knowledge
independently of the production by the Designating Party or. Prior knowledge must
be established by pre-production documentation.
25. 	The restrictions and obligations within this Order will not be deemed to
prohibit discussions of any confidential information with anyone if that person already has
or obtains legitimate possession of that information.
26. 	Transmission 	by 	e-mail 	or 	some 	other 	currently 	utilized 	method 	of
transmission is acceptable for all notification purposes within this Order.
27. 	This Order may be modified by agreement of the parties, subject to approval
by the Court.
28. 	The Court may modify the terms and conditions of this Order for good cause,
or in the interest of justice, or on its own order at any time in these proceedings.
29. 	Without separate court order, this Order and the parties’ joint motion do not
change, amend, or circumvent any court rule or local rule.
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QUALIFIED PROTECTIVE ORDER
30. 	The parties and attorneys to the above-captioned matter (the “Action”) are
hereby authorized to receive, subpoena, and transmit protected health information to the
extent and subject to the conditions set forth herein. 45 C.F.R. § 164.512(e)(1)(iv).
31. 	All “covered entities,” as defined in 45 C.F.R. § 160.103, are authorized to
disclose protected health information to all attorneys in this Action. Covered entities shall
make reasonable efforts to limit the protected health information used or disclosed in this
Action.
32. 	The parties and their attorneys shall be permitted to use the protected health
information, to the extent not redacted from materials exchanged during the course of the
litigation, in any manner reasonably connected with the Action, including, but not limited
to, disclosure to the parties and their attorneys, insurers, claims managers, experts, and
consultants, the court, necessary court personnel, court reporters, copy services, trial
consultants, jurors, any appellate court, and other persons and entities involved in the
litigation process, provided that, in the case of insurers, claims managers, experts, and
consultants, any such persons first agree to by bound by the terms of this Order
33. 	All protected health information produced or disclosed in the Action shall be
used solely for the prosecution or defense (including any appeal therefrom) of the Action,
and shall not be used for any other purpose.
34. 	Any person or entity in possession of protected health information shall
maintain the information in a reasonably secure manner, and shall not disclose, reveal to
or discuss such information with any person not entitled to receive it, so that the protected
health information is not further disclosed or used in any manner inconsistent with this
Order.
35. 	Within sixty (60) days after the conclusion of this Action, the parties, their
attorneys, and any other persons or entities that came into possession of the protected health
information through this Action shall return the protected health information to the covered
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entity that provided it, or destroy the protected health information, except for information
that was submitted to the Court.
36. 	Nothing in this Order authorizes counsel to obtain medical records or
information through means other than formal discovery requests, subpoenas, depositions,
patient authorizations, or other lawful processes.
37. 	This Order does not control or limit the use of protected health information
that comes into possession of any party, or any party’s attorney, from a source other than
a covered entity as defined in 45 C.F.R. § 160.103.
IT IS SO ORDERED.
Dated: February 11, 2026
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EXHIBIT A
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I, ______________________ (name), of _____________________________
(address), declare under penalty of perjury that I have read in its entirety and understand
the Protective Order (“Order”) that was issued by the United States District Court for the
Southern District of California on ________________ (date), in the case of 	In Re
DermTech, Inc. Securities Litigation, Case No. 3:23-cv-01885-DMS-JLB. 	I agree to
comply with and to be bound by all the terms of the Order, and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment in the
nature of contempt. 	I solemnly promise that I will not disclose in any manner any
information or item that is subject to the Order to any person or entity, except in strict
compliance with the provisions of the Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Southern District of California for the purpose of enforcing the terms of the Order, even if
such enforcement proceedings occur after termination of this action.
I declare under penalty of perjury that the foregoing is true and correct.
Name: ______________________________________
Signature: _________________________ 	Date: _________________
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