JUNO THERAPEUTICS, INC. et al. v. KITE PHARMA, INC Case No. CV 17-7639-SJO-KSx United States District Court, C.D. California Filed April 29, 2019 Counsel Morgan Chu, Alan J. Heinrich, Crawford Maclain Wells, Elizabeth Chenyi Tuan, Lauren Nicole Drake, Moon Hee Lee, Irell and Manella LLP, Andrea Weiss Jeffries, Emily Moore Whitcher, Los Angeles, CA, Christopher J. Harnett, Pro Hac Vice, Kevin V. McCarthy, Pro Hac Vice, Sarah A. Geers, Pro Hac Vice, New York, NY, for Juno Therapeutics, Inc. et al. Adam R. Lawton, Edward George Dane, Garth T. Vincent, Graham Berres Cole, Jeffrey I. Weinberger, Peter E. Gratzinger, Munger Tolles and Olson LLP, Los Angeles, CA, Geoffrey D. Biegler, Fish and Richardson PC, Los Angeles, CA, Grant T. Rice, Pro Hac Vice, Fish and Richardson PC, Boston, MA, Gregory R. Booker, Pro Hac Vice, Fish and Richardson PC, Wilmington, DE, Lance E. Wyatt, Pro Hac Vice, Fish and Richardson PC, Dallas, TX, Megan Alexandra Chacon, Fish and Richardson PC, San Diego, CA, for Kite Pharma, Inc. Stevenson, Karen L., United States Magistrate Judge ORDER RE: (1) DEFENDANT KITE PHARMA, INC.'S MOTION TO COMPEL NON-PARTY BRISTOL MYERS SQUIBB TO PRODUCE DOCUMENTS IN RESPONSE TO SUBPOENA (DKT NO. 153); AND (2) NON-PARTY BRISTOL MYERS SQUIBB'S MOTION FOR PROTECTIVE ORDER FOR SUBPOENA (DKT. NO. 160) INTRODUCTION *1 Before the Court for resolution are two related discovery motions concerning third party discovery in this patent infringement action. On March 13, 2019, Defendant Kite Pharma, Inc. (“Kite”) filed a Motion to Compel Non-Party Bristol Myers Squibb (“BMS”) to Produce Documents in Response to Subpoena (“Motion to Compel”). (Dkt. No. 153.) On March 20, 2019, BMS filed a Motion for Protective Order to preclude production of documents in response to Kite's subpoena. (Dkt. No. 160.) On March 20, 2019, BMS filed a Memorandum of Points and Authorities (1) In Opposition to Motion to Compel, and (2) In Support of BMS's Motion for Protective Order. (Dkt. No. 162.) Concurrently, BMS filed the Declarations of Joseph N. Akrotirianakis (“Akrotirianakis Decl.”) and Brian Heaphy (“Heaphy Decl.”). (Dkt. Nos. 163, 164, respectively.) Also, on March 20, 2019, BMS filed an Ex Parte Application to Shorten Time for hearing on the Motion to Compel. (Dkt. No. 161.) On March 22, 2019, Kite filed an Opposition to Kite's Ex Parte Application (Dkt. No. 171) and on the same date, BMS filed a Reply in support of its Ex Parte Application (Dkt. No. 172). On March 26, 2019, the Court: (1) vacated the hearing on Kite's Motion to Compel finding the matter suitable for disposition without oral argument (Dkt. No. 180); (2) denied BMS's Ex Parte Application to shorten time for hearing the Motion to Compel (Dkt. No. 181); and (3) vacated the hearing on BMS's Motion for Protective Order (id.). On March 27, 2019, Kite filed a Response in Support of the Motion to Compel (“Reply”). (Dkt. No. 184.) On March 28, 2019, BMS filed a Reply in support of its Motion for Protective Order. (Dkt. No. 187.) On April 12, 2019, Kite filed a Notice of Supplemental Evidence Re: Motion to Compel. (Dkt. No. 207). The Kite and BMS cross-motions are fully briefed and ready for decision. Having thoroughly reviewed the moving papers and evidence submitted in connection with the cross-motions, for the reasons stated below, Kite's Motion to Compel is GRANTED and BMS's Motion for Protective Order is GRANTED in part and DENIED in part. RELEVANT BACKGROUND In this patent infringement action, Plaintiffs allege that Defendant Kite unlawfully commercialized a cancer immunotherapy that utilizes a chimeric T-cell receptor that was invented, and patented (the “'190 Patent”) by scientists at Sloan Kettering Institute for Cancer Research. (Complaint ¶¶ 8-15 [Dkt. No. 1].) Plaintiffs seek patent infringement damages “on the theory that Kite has harmed the approval timelines and commercial prospects of Juno's pipeline product” known as JCAR017. (Motion to Compel at 1.) Non-party BMS is expected to complete an acquisition of Celgene, Juno's parent company, “by the third quarter of this year.” (Id; and see Declaration of Adam R. Lawton (“Lawton Decl.”) Ex. 5 (excerpts of BMS Form S-4 Registration Statement).) On January 11, 2019, Kite served a subpoena duces tecum for production of documents to BMS (the “Subpoena”). (Lawton Decl., Ex. 6.) The Subpoena called for BMS to produce documents, electronically stored information or objections on January 25, 2019. (Id.) BMS served objections to the Subpoena on February 1, 2019. (Lawton Decl., Ex. 7.) The Subpoena, as initially served, sought eight (8) broad categories of documents. (Lawton Decl., Ex. 6.) Kite has since narrowed its request to “documents that BMS already had to collect, review for privilege,” and produce to the federal government under the Hart-Scott Rodino Antitrust Improvements Act (“HSR Act”). (Motion to Compel at 4.) Specifically, Kite narrowed the Subpoena to the following documents: *2 1. The Notification and Report Form for Certain Mergers and Acquisitions (FTC Form C4) that BMS has filed or will file with the U.S. antitrust authorities pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 .... in connection with BMS's pending acquisition of Plaintiff Juno Therapeutics, Inc.'s parent company, Celgene Corporation. 2. The documents identified in BMS's HSR Act filing that relate to Juno. (Motion to Compel at 8 (citing Lawton Decl., Exs. 8, 9).) I. THE MOTION TO COMPEL Kite argues that non-party BMS should be compelled to produce documents in response to the Subpoena on two grounds. First, Kite maintains that BMS waived any objections to the Subpoena because it did not timely serve its objections. (Motion to Compel at 1.) Second, Kite emphasizes that BMS's principal reason for objecting to producing the requested documents is that the information is confidential. However, Kite argues that the existing protective order in this case, which includes “Attorneys' Eyes Only” protection, is adequate to shield commercially sensitive information from improper disclosure. (Id.) Kite notes that the parties in the underlying action “are themselves competitors, [and] have produced thousands of sensitive documents to each other under the protective order without any issues arising.” (Id. at 2.) Further, Kite contends that the information it seeks from BMS is “highly relevant to Juno's damages claims” and to Kite's theory that “Juno's diminished expectations for JCAR017 are attributable ... to factors such as Juno's own product-development failings and strategic decisions by Celgene, which today owns Juno.” (Id. at 3.) Kite argues that based on BMS's intention to acquire Celgene, as announced in January 2019, BMS, rather than Celgene, is likely to “control JCAR017's development at the time of trial .... Therefore, BMS's development plans and strategies for JCAR017, as distinct from Celgene's, are centrally relevant to Kite's defense against Juno's claim of diminished commercial prospects for JCAR017.” (Id.) In opposing the Motion to Compel, BMS argues that its objections were timely served and Kite has not met its burden to show “substantial need” for BMS's highly-sensitive confidential documents. (Opposition at 9-12.) BMS argues that Kite's claims of relevance are “tenuous at best” because the information the Subpoena seeks reflects “subjective, incomplete assessment by BMS or its confidential consultants of the current-day ... value of assets that Celgene acquired from Juno.” (Id. at 2-3 (citing Heaphy Decl., ¶ 5; Akrotirianakis Decl., ¶ 23).) BMS also contends that the Subpoena is unduly burdensome and improperly seeks opinions of MBS's unretained experts. (Opposition at 15-18.) Kite, in its Reply, reiterates its contention that BMS's objections were untimely and therefore waived. (Reply at 3.) Kite argues that BMS's concerns that disclosing the Juno-related information could derail the pending Celgene acquisition are unfounded. (Id. at 2-3.) Nonetheless, Kite appears to acknowledge that “perhaps discovery would be more orderly if BMS closed it acquisition of Celgene before providing discovery about its plans, assessments, and projections for JCAR017, but the case schedule does not permit that sequencing.” (Reply at 5.) Kite argues that it is not required to make a showing of “substantial need” with respect to the documents sought in the Subpoena. (Reply 4, n.1.) But Kite contends that it has satisfied both the “relevance” or “substantial need” standard to permit the discovery sought by the Subpoena. (Reply at 4.) Kite maintains that the Subpoena seeks documents that are highly relevant and necessary to refute Juno's damages claims related to JCAR017, which exceed $2 billion. (Id.) Kite also challenges BMS's contention that the Subpoena is unduly burdensome, by emphasizing that BMS has already collected, reviewed for privilege, and provided to regulators, the narrowed subset of Juno-related documents that it seeks. (Id. at 6-8.) *3 Finally, Kite urges that any confidentiality concerns can be adequately addressed through the existing Protective Order, which affords appropriate protections under the “Attorneys Eyes Only” designation. (Reply at 3.) A. Legal Standards Under Rule 26 of the Federal Rules of Civil Procedure, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). As amended in December 2015, Rule 26(b)(1) identifies six factors to be considered when determining if the proportionality requirement has been met, namely, the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. (Id.) Relevant information need not be admissible to be discoverable. (Id.) District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). When considering a motion to compel, the Court has similarly broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallet, 296 F.3d at 751). Rule 45 of the Federal Rules of Civil Procedure governs subpoenas duces tecum for the production of documents from non-parties with or without the taking of a deposition. Rule 45 serves “to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties ...” Fed. R. Civ. P. 45, Advisory Committee Notes to 1991 Amendment. “The non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34.” (Id.) A non-party served with a subpoena pursuant to Rule 45 must serve its objections “before the earlier of the time specified for compliance or within 14 days after the subpoena is served.” FED. R. CIV. P. 45(d)(2)(B). “A non-party's failure to timely make objections to a Rule 45subpoena ... generally requires the court to find that any objections have been waived.” Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (internal citations omitted).) However, “[i]n unusual circumstances and for good cause, .... the failure to act timely will not bar consideration of objections [to a Rule 45 subpoena].” McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 3285 (C.D. Cal. 2002). When timely objections are served, the party that served the subpoena “may move the issuing court for an order compelling production or inspections.” FED. R. CIV. P. 45(d)(2)(B). In addition, a non-party withholding subpoenaed information based on privilege must: (1) expressly make the claim of privilege; and (2) “describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” FED. R. CIV. P. 45(e)(2). On a timely motion, the court for the district where compliance is required must quash or modify the subpoena that: *4 (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c) (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. FED. R. CIV. P. 45(d)(3)(A). Further, on a motion, a court may quash or modify a subpoena if it requires “disclosing a trade secret or other confidential research, development, or commercial information.” FED. R. CIV. P. 45(d)(3)(B). B. Discussion 1. BMS Has Not Waived Objections to the Subpoena As an initial matter, Kite argues that BMS has waived it objections to the Subpoena by failing to timely serve its objections. (Motion to Compel at 8-9.) As noted above, Rule 45 requires that objections must be served “before the earlier of the time specified for compliance or 14 days after the subpoena is served.” FED. R. CIV. P. 45(d)(1)(B) (emphasis added). Here, Kite served the Subpoena on January 11, 2019 with an original compliance date of January 25, 2019. (Lawton Decl., Ex. 6.) BMS notes, however, that Kite agreed to extend the time for BMS to respond to the Subpoena from January 25, 2019 to February 4, 2019. (Akrotirianakis Decl., Ex. 3.) BMS served objections to the Subpoena on February 1, 2019. (Id., Ex. 7.) Kite insists that the agreed extension was solely for the purpose of “giving BMS additional time to respond to [Kite's] narrowed request for the subset of [Juno-related HSR Act] documents, not for the purpose of merely filing objections.” (Motion at 4; Lawton Decl., Ex. 8.) Because the communication from BMS's counsel sent on January 23, 2019 plainly states that BMS was planning “to provide Kite with written objections and responses to Kites' revised document requests by February 4”, the Court finds that BMS has not waived its objections. Even if the Court were to accept Kite's contention that the extension was only for production and not an extension for objections, it is well established that “[i]n unusual circumstances and for good cause, ... the failure to act timely will not bar consideration of objections [to a Rule 45 subpoena].” McCoy v. Southwest Airlines Co., Inc., F.R.D. 381. 385 (C.D. Cal. 2002) (internal citations and quotation marks omitted). Courts have found unusual circumstances where “the subpoena is overbroad on its face and exceeds the bounds of fair discovery and the subpoenaed witness is a non-party acting in good faith.” Moon v. SCP Pool Corp., 232 F.R.D. at 637 (citing McCoy, 211 F.R.D. at 385). There were numerous communications between Kite's and BMS's counsel regarding the scope of the Subpoena and BMS's concerns about the sensitivity of the information requested in the Subpoena, which resulted in Kite's proposal to significantly narrow the scope of the Subpoena and extend the response date to February 4, 2019. (See Opposition at 5-7; Akrotirianakis Decl., ¶¶ 4-6, Exs. 2-4; Lawton Decl., ¶ 7, Exs. 7-11.) Thus, the record is also sufficient for the Court to find there are unusual circumstances and good cause to consider Kite's objections, despite any possible waiver. 2. Kite Has Demonstrated Relevance and Substantial Need for the Subpoenaed Information *5 Kite argues that with the scope of the Subpoena now limited to only those Juno-related documents provided in connection with the public government filing requirements under the HSR Act for the pending Celgene acquisition, “BMS's evaluations of and plans for JCAR017 are centrally relevant to Juno's claim of future lost sales and profits.” (Motion to Compel at 10.) BMS argues that the BMS documents sought by the Subpoena are less relevant for Kite's stated purposes than analyses and plans for JCAR017 that were prepared by Juno and Celgene themselves. (Opposition at 11.) Rule 26(b) permits discovery of information relevant to any claim or defense at issue in the action and proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). Moreover, “[t]he scope of the discovery that can be requested through a subpoena under Rule 45 is the same as the scope under Rule 26(b).” McErlain v. Park Plaza Towers Owners Ass'n, Case No. C 13-03232, 2013 U.S. Dist. LEXIS 179176, at *5-6 (N.D. Cal. Dec. 19, 2013) (internal citations omitted). Relevancy for purposes of discovery is defined “broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any issue in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). BMS's argument the Motion should be denied because Kite has failed to show that the information sought by the Subpoena could not be obtained through party discovery, is not persuasive. (See Opposition at 11-12.) Kite makes it clear that even though Juno and Celgene may have analyses and projections regarding a JCAR017 product, BMS's assessment of the product's potential if and when it is brought to market may be different. (Motion to Compel at 10-11.) BMS also argues that Kite fails to show that the information it can obtain through party discovery is “unreliable.” (Opposition at 15.) But that is not the point. Kite seeks the BMS information not because the Celgene/Juno information is unreliable, but because the analyses done by or on behalf of BMS, as the post-merger controlling entity for Juno and its JCAR017 product, is relevant to Juno's alleged claims of prospective economic damages. These arguments are closely related to BMS's argument that Kite has failed to demonstrate a “substantial need” for the sensitive competitive information sought by the Subpoena. (See Opposition at 11-15.) Where, as here, a non-party demonstrates that the information requested by a subpoena is a trade secret or involves confidential commercial information within the meaning of Rule 45(d)(3)(B)(i), “the burden shifts to the requesting party to show a substantial need for the testimony or material that cannot be otherwise met without undue hardship.” Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA (JSC), 2017 WL 2929439, at * 3 (internal citation and quotation marks omitted). Similarly, under Rule 26(c), when a party opposing discovery shows that the information is a trade secret of confidential commercial information, the party seeking discovery must show “both relevance and need, [and] the court must weigh the injury that disclosure might cause to the property against the moving party's need for the information.” ODS Technologies, L.P. v. Magna Entertainment Corp., Case No. CV 07-3265-DDP (RCx), 2008 WL 11343035, at *1-2 (Cal. Ct. App. Oct. 21, 2016) (denying motion to compel production of source code in absence of showing that it was needed to prepare for trial). In the Motion to Compel, Kite argues that it has demonstrate both relevance and the “substantial need” for the BMS documents. (Motion to Compel at 9.) Kite further urges that this information is not available from any other source as it is not duplicative of analyses already developed by Juno and/or Celgene. (Id. at 10.) Kite contends that in this case where Plaintiff's seeks damages “based in part on supposed future lost profits of JCAR017” given the impending merger that will, if completed, result in a change of control over Juno and commercial development of the JCAR017 product, it is essential that Kite be able to obtain discovery from BMS “about its plans for and assessment of JCAR017.” (Reply at 4.) *6 The Court concludes Kite has shown substantial need for the information the Subpoena seeks, as narrowed by Kite, insofar as Plaintiff's alleged future lost sales will likely be dependent on the analyses, valuations, and projections of BMS post-Celgene acquisition. Further, given the recent BMS shareholder approval for the proposed merger, the likelihood of BMS having control over the future market trajectory for JCAR017 is not merely speculative. (See Defendant's Supplemental Evidence in Support of Motion at 1.) Moreover, BMS's analyses, to the extent such may be reflected in the documentation BMS has filed under the HSR Act, is relevant to Plaintiff's claims of future economic losses due to Kite's alleged infringement. (See e.g., Complaint at ¶ 39 (“Kites' infringement of the '190 Patent causes and will continue to cause irreparable harm to Juno unless and until Kite's infringing activities are enjoined by this Court.”).) Further, the Court finds the information sought in the Subpoena to be proportional to the needs of the case and poses no undue burden on BMS. Indeed, BMS's primary argument that compliance would impose an undue burden rests on the assertion that the merger is subject to a possible opposition by “an BMS activist investor.” (Opposition at 2.) But Kite presents publicly available evidence in the form of a BMS press release, that on April 12, 2019, the proposed merger with Celgene was overwhelmingly approved by BMS's shareholders. (Kite Supplemental Evidence re: Motion to Compel.). Consequently, because the narrowed requests seek documents that have already been collected, reviewed for privilege, and provided to regulatory agencies in compliance with the HSR Act, there is no additional burden on BMS to provide those same documents here in response to the Subpoena and subject to strict protections under the existing Protective Order. 3. The Stipulated Protective Order Can Be Modified to Address BMS's Concerns for Privacy and Confidentiality BMS also argues that its analyses and plans for JCAR017 are confidential and, in particular, BMS considers any analyses and valuations of parts of Celgene's business that Celgene acquired from Juno “to be among its most highly sensitive commercial information.” (Heaphy Decl. at ¶¶ 5-6.) BMS also raises concerns about the sensitive nature of information sought by the Subpoena, because the proposed BMS-Celgene merger is “the subject of opposition by an activist investor in BMS.” (Opposition at 2.) Kite points out that this concern is no longer an issue because on April 12, 2019, BMS issued a press release confirming that its shareholders have voted overwhelmingly to approve the proposed acquisition of Celgene. (Kite's Supplemental Evidence re: Motion to Compel, Ex. 1.) There is a Protective Order already in place in this case that allows for “Attorneys Eyes Only” designation to address the competitive sensitivities that BMS raises here. (See Dkt. No. 75.) BMS, however, contends the existing Protective Order is “woefully deficient with respect to Kite's requests for BMS's competitively sensitive information in the midst of the pending BMS-Celgene merger.” (Opposition at 17.) BMS complains that the existing Protective Order would allow in-house counsel for Celgene/Juno and Gilead/Kite access to BMS's documents, as well as non-attorneys including “mock jurors, focus groups, outside consultant or experts, and a variety of other vendors.” (Id.) To the extent BMS believes the “Attorneys Eyes Only” designation does not provide adequate protections against improper disclosure for its commercially sensitive information, the Protective Order can be modified to heighten the protections afforded to any BMS documents produced pursuant to the Subpoena. Specifically, provisions can be added that would prevent disclosure of any BMS documents to in-house counsel of market competitors or non-attorneys such as mock jurors, focus groups, and other vendors. 4. Nonretained BMS Expert Opinions Do Not Preclude Disclosure *7 BMS's final argument in opposing the Motion to Compel is that the Subpoena improperly “seeks to extract ‘an unretained expert's opinion’ from BMS regarding the valuation of Celgene's Juno assets[.]” (Opposition at 18.) Kite responds that this assertion is meritless for two reasons: first, because “BMS's plans regarding products that it has agreed to acquire ... are not expert opinions[,]” and second, Kite is not seeking to use “BMS's expertise or services.” (Reply at 8.) In particular, Kite argues that Rule 45(d)(3)(B)(ii), which permits (but does not require) a court to quash or modify a subpoena that seeks an unretained expert's opinion, was promulgated to allow experts to “bargain for the value of their services” when a subpoena would otherwise deny them the ability to do so. (Id. (citing In re Public Offering PLE Antitrust Litig., 233 F.R.D. 70, 76 (D. Mass. 2006).) The relevant language from the Advisory Committee notes to the 1991 amendments to Rule 45emphasizes that— what was subdivision (c) and is now —subdivision (d) of Rule 45 is intended to provide appropriate protection for the intellectual property of the non-party witness; ... Experts are not exempt from the duty to give evidence ... but compulsion to give evidence may threaten the intellectual property of experts denied the opportunity to bargain for the value of their services. Fed. R. Civ. P. 45, advisory committee's note to 1991 amendment. Concerns that the disclosures sought by Subpoena may prevent a nonretained expert from being properly remunerated for his or her services is not at issue here. Thus, BMS's arguments as to disclosure of unretained expert opinions are unpersuasive. There is nothing in the record to suggest that Kite seeks to use BMS's experts' opinions in lieu of Kite's own experts. Rather, BMS seeks factual information regarding valuation and market analyses as to the JCAR017 product in order to defend against Juno's claims of damages based on future economic harm. The evidence sought is relevant, proportional, and Kite has adequately demonstrated necessity as the information is noncumulative of discovery obtained through party discovery. II. NON-PARTY BMS'S MOTION FOR PROTECTIVE ORDER In opposing Kite's Motion to Compel, BMS also seeks affirmative relief in the form of a protective order on the same grounds that it argues the Motion to Compel should be denied. (Dkt. No. 162.) As discussed above, the Court finds that the third-party discovery sought through the Subpoena is relevant and proportionate to the needs of the case and does not impose an undue burden on non-party BMS. Nonetheless, BMS raises legitimate concerns regarding the need for stringent protections of its sensitive commercial information. Insofar as BMS contends that its commercially sensitive information cannot be adequately protected through the “Attorneys Eyes Only” designation under the existing Protective Order in this case, the Protective Order should be modified to afford more stringent protections for the BMS documents. Accordingly, BMS's Motion for Protective Order is GRANTED to the extent that before any responsive BMS documents are produced, Kite must file a mutually agreed amendment to the Protective Order to preclude disclosure of BMS's document to in-house attorneys of any market competitor and non-attorneys such as mock jurors, focus groups, and other vendors. The Motion for Protective Order is DENIED is all other respects. III. CONCLUSION For the foregoing reasons, Kite's Motion to Compel is GRANTED. Within ten (10) days of the date of this Order, non-party BMS shall comply with the Subpoena to produce: (1) the HSR Act form that if filed with the FTC in connection with the Celgene acquisition; and (2) documents identified in BMS's HSR Act form that relate to Plaintiff Juno Therapeutics Inc. Further, IT IS ORDERED that within five (5) days of the date of this Order, Kite must file proposed, mutually agreed, amendment(s) to the Protective Order that affords sufficiently stringent protection to the BMS documents produced pursuant to the Subpoena *8 Non-party BMS's Motion for Protective Order is GRANTED in part and DENIED in part, at outlined above. IT IS SO ORDERED.