Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 1 of 21 PageID #: 147
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`MEDA PHARMACEUTICALS INC. and
`CIPLA LTD.,
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`Plaintiffs,
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`v.
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`APOTEX INC. and APOTEX CORP.,
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`C.A. No. 14-1453-LPS-CJB
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`[PROPOSED] STIPULATED PROTECTIVE ORDER
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`Defendants.
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`WHEREAS, Plaintiffs Meda Pharmaceuticals Inc. (“Meda”) and Cipla Ltd. (“Cipla”)
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`(collectively, “Plaintiffs”) and Defendants Apotex Inc. and Apotex Corp. (collectively,
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`“Apotex”) are parties to the above-captioned action (the “action” or “litigation”);
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`WHEREAS, the parties to this action believe that one or more of them will or may be
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`required to disclose to another party certain documents, things, and information that constitute or
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`contain trade secrets, technical know-how, or other confidential or proprietary research,
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`development, business, commercial, or financial information relating to the subject matter of this
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`action;
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`WHEREAS, the parties consider such information to be confidential and proprietary
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`within the meaning of Fed. R. Civ. P. 26(c)(7), Pansy v. Borough of Stroudsburg, 23 F.3d 772
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`(3d Cir. 1994) and Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) and, therefore,
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`mutually desire that a Stipulated Protective Order limiting use, access to, and disclosure of such
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`information be entered;
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`{00978043;v1 }
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 2 of 21 PageID #: 148
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`WHEREAS, the parties contemplate that confidential information produced in this
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`action may be produced by a non-party, and the parties also seek to facilitate the production and
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`protection of such confidential information;
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`WHEREAS, the parties have and/or expect to exchange discovery in connection with
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`this matter and recognize that confidential information may be disclosed in the course of this
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`discovery, and in other proceedings in this matter;
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`WHEREAS, the parties desire to limit the extent of disclosure and use of such
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`confidential information, and to protect such confidential information from unauthorized use
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`and/or further disclosure, and wish to ensure that no advantage is gained by any party by the use
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`of such confidential information which could not have been gained had discovery in this action
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`not occurred;
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`WHEREAS, this action involves highly technical subject matter requiring discovery of
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`trade secrets and proprietary information pertaining to, among other things, drug formulations,
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`manufacturing processes and techniques, scientific research and development, and other sensitive
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`competitive information; and
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`WHEREAS, the parties have consented to the entry of this Stipulated Protective Order
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`(“Order”) pursuant to Federal Rule of Civil Procedure 26(c) and the Court having considered the
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`foregoing and for good cause shown,
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`IT IS ORDERED, that the following provisions shall govern the conduct of further
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`proceedings in this action:
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`Definitions
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`1.
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`(a)
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`The term “Confidential Information” shall mean any tangible thing or oral
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`testimony that contains or reveals what a party or non-party considers to be its trade secret,
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`{00978043;v1 }
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`2
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 3 of 21 PageID #: 149
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`business confidential, or proprietary research, development, commercial, or financial
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`information. It may include, without limitation, documents produced in this action, during formal
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`discovery or otherwise; information of non-parties which the producing or designating party is
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`under an obligation to maintain in confidence; initial disclosures; answers to interrogatories and
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`responses to requests for admission or other discovery requests; deposition or hearing transcripts;
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`affidavits; exhibits; experts’ reports; memoranda of law; and tangible things or objects that are
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`designated confidential pursuant to this Order. The information contained therein and all copies,
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`abstracts, excerpts, analyses, notes or other writings that contain, reflect, reveal or otherwise
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`disclose such confidential information shall also be deemed “Confidential Information.”
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`Information originally designated as “Confidential Information” shall not retain that status after
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`any ruling by the Court denying such status to it. Each party shall act in good faith in designating
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`information as “Confidential Information.”
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`The term “Highly Confidential Information” shall mean any tangible thing or oral
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`testimony that comprises or contains (i) confidential, highly sensitive, and/or proprietary
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`information pertaining to marketing, sales, revenues, profits, forecasts, or business plans or
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`strategies for any existing products or products in development and (ii) any scientific or technical
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`information relating to, referring to, or concerning Dymista, Apotex’s ANDA No. 207712
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`and/or the associated products (including compositions, methods, uses, or processes) that
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`constitute or reflect trade secrets or other proprietary information, including, but not limited to,
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`draft patent applications, invention disclosures, non-public patent filings; confidential research,
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`development, testing and studies relating to drug products, methods, uses or processes; any
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`correspondence or draft correspondence with the FDA regarding ANDA No. 207712; any
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`research, development, testing, analysis and/or studies, including analytical data and/or any
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`{00978043;v1 }
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`3
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 4 of 21 PageID #: 150
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`chemical materials used to produce an azelastine hydrochloride and fluticasone propionate
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`combination nasal spray that the producing party reasonably believes the disclosure of which is
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`likely to cause harm to the competitive position of the party producing the information. It may
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`include, without limitation, documents produced in the actions, during formal discovery or
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`otherwise; information of non-parties which the producing or designating party is under an
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`obligation to maintain in confidence; initial disclosures; answers to interrogatories and responses
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`to requests for admission or other discovery requests; deposition or hearing transcripts;
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`affidavits; exhibits; experts’ reports; memoranda of law; and tangible things or objects that are
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`designated confidential pursuant to this Order. The information contained therein and all drafts,
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`copies, abstracts, excerpts, analyses, notes or other writings that contain, reflect, reveal or
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`otherwise disclose such highly confidential information shall also be deemed “Highly
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`Confidential
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`Information.”
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`Information originally designated as “Highly Confidential
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`Information” shall not retain that status after any ruling by the Court denying such status to it.
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`Each party shall act in good faith in designating information as “Highly Confidential
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`Information.”
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`(b)
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`(c)
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`The term “party” means Meda, Cipla, and/or Apotex.
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`The term “producing party” means any party or non-party producing
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`documents or information as Confidential Information or Highly Confidential Information under
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`this Order.
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`(d)
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`The term “receiving party” shall mean any party to whom Confidential
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`Information or Highly Confidential Information is produced.
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`{00978043;v1 }
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`4
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 5 of 21 PageID #: 151
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`Designation of Confidential and Highly Confidential Information
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`2.
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`Each producing party who produces or discloses any material that it believes
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`comprises Confidential Information may so designate it by marking the document containing the
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`information “CONFIDENTIAL-SUBJECT TO STIPULATED PROTECTIVE ORDER.” Each
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`producing party who produces or discloses any material that it believes comprises Highly
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`Confidential Information may so designate it by marking the document containing the
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`information “HIGHLY CONFIDENTIAL-SUBJECT TO STIPULATED PROTECTIVE
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`ORDER.” When documents are produced for inspection, the documents shall be treated by the
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`receiving party as “Highly Confidential” until copies are provided and otherwise designated.
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`Deposition testimony will be treated as Highly Confidential Information unless otherwise
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`designated or confidentiality is waived either on the record during the deposition or within thirty
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`(30) days after receipt of the transcript. Each transcript and/or recording of the deposition shall
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`be prominently marked on the front with a statement that provides “THIS DEPOSITION
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`CONTAINS [HIGHLY] CONFIDENTIAL INFORMATION SUBJECT TO STIPULATED
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`PROTECTIVE ORDER.”
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`3.
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`If any Confidential Information or Highly Confidential Information is produced
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`by a non-party to these litigations, such a non-party shall be considered a producing party within
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`the meaning of that term as it is used in the context of this Order and each of the parties shall be
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`treated as a receiving party. Confidential Information or Highly Confidential Information that
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`originated with a non-party may be designated as such and shall be subject to the restrictions on
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`disclosure specified herein.
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`4.
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`In the event any producing party produces Confidential Information or Highly
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`Confidential Information that has not been designated as such or not correctly designated, the
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`{00978043;v1 }
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`5
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 6 of 21 PageID #: 152
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`producing party may designate or re-designate the information to the same extent as it may have
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`designated the information before production, by a subsequent notice in writing specifically
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`identifying the re-designated information, in which event the parties shall henceforth treat such
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`information in accord with this Order, and shall undertake their best efforts to correct any
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`disclosure of such information contrary to the re-designation, including retrieving any documents
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`from persons not qualified to receive them under the re-designation and informing such persons
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`that they should not further use or disseminate the information thereon. No demonstration or
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`proof of error, inadvertence, or excusable neglect by the designating party shall be required for
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`such re-designation.
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`5.
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`A party shall not be obligated to challenge the propriety of any designation of
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`Confidential Information or Highly Confidential Information at the time the designation is made,
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`and failure to do so shall not preclude a subsequent challenge to the designation. In the event that
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`any party to this action disagrees at any stage of this action with any designation, such party shall
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`provide written notice of its disagreement with the designation to the producing party. The
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`parties shall first try to dispose of such dispute in good faith on an informal basis without judicial
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`involvement. If the dispute cannot be resolved, the party challenging the designation may request
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`appropriate relief from the Court within ten (10) business days after written notice is provided.
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`The burden of proving that information has been properly designated is on the producing party.
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`However, the parties agree that designating information as Confidential or Highly Confidential is
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`improper if such information (i) can be shown to be generally available to the public at the time
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`of such designation; (ii) becomes part of the public domain or publicly known or available by
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`publication or otherwise not as the result of any unauthorized act or omission on the part of the
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`{00978043;v1 }
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`6
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 7 of 21 PageID #: 153
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`non-designating party; or (iii) is thereafter disclosed to the non-designating party by a third party
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`as a matter of right.
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`Disclosure and Use of Confidential Information and Highly Confidential Information
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`6.
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`(a)
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`Subject
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`to Paragraphs 10-12, material designated Confidential
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`Information, and all information derived therefrom, shall be used only by persons permitted
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`access to such information under this Protective Order, shall not be disclosed by the receiving
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`party to any party or person not entitled under this Protective Order to have access to such
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`material, and shall not be used by the receiving party for any purpose other than in connection
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`with this litigation, and no other, and expressly prohibiting, without limitation, use for any
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`research, development, manufacture, patent prosecution (subject
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`to
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`the provisions of
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`Paragraph 6(b)), financial, commercial, marketing, regulatory, business, or other competitive
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`purpose (except for settlement of the above-captioned case). Absent written consent of the
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`producing Party and/or further order of this Court, all persons receiving information designated
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`Confidential Information are expressly prohibited from using or disclosing such information in
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`connection with any practice before or communication with (including, but not limited to, patent
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`applications, citizens petitions, and other filings) the United States Patent and Trademark Office
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`(subject to the provisions of Paragraph 6(b)), the FDA, the United States Pharmacopoeia, or their
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`counterpart organizations in any foreign jurisdiction. Confidential Information of the producing
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`party may be disclosed, summarized, described, revealed or otherwise made available in whole
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`or in part only in accordance with the terms of this Order, and only to the following persons:
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`{00978043;v1 }
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`7
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 8 of 21 PageID #: 154
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`(i)
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`outside counsel of record for Meda, Cipla, and Apotex; and
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`employees of such counsel all of whom represent and agree that they do not undertake patent
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`preparation or prosecution as set forth below in Paragraph 6(b) of this Order;
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`(ii)
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`a total of up to three (3) designated in-house legal personnel
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`employed by Meda, a total of up to three (3) designated in-house legal personnel employed by
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`Cipla, and a total of up to three (3) designated in-house legal personnel employed by Apotex,
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`who have a need to know Confidential Information to fulfill their duties and responsibilities in
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`connection with this litigation, provided such legal personnel have complied with Paragraph 11
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`hereof. The in-house legal personnel identified under this Order may change to accommodate
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`changes in litigation responsibilities, provided that there are only three in-house attorneys for
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`each party allowed to view Confidential Information at any one point in time;
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`(iii)
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`independent consultants or experts retained by a party to this
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`action, who are not employees, officers or directors of any party, and not anticipated to become
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`employees, officers or directors of that party and who are retained or employed as bona fide
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`consultants or experts for purposes of this litigation, whether full or part time, by or at the
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`direction of counsel for that party, and any employees and/or assistants working under the direct
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`supervision and control of such consultants or experts, provided such persons have complied
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`with Paragraph 11 hereof;
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`(iv) witnesses testifying during a deposition or at trial, if the witness is
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`a current or former director, officer, or employee of the designating party, so long as the
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`examination concerns Confidential Information that the witness authored or previously had
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`access to or knowledge of—as demonstrated by the Confidential Information itself or by
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`foundational testimony during a deposition, hearing, or trial—or the witness was employed by
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`{00978043;v1 }
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`8
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 9 of 21 PageID #: 155
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`the designating party during the relevant time and is reasonably believed to have had access to
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`the Confidential Information,
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`(v)
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`the Court, including clerks, court personnel, and court reporters
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`and videographers employed in connection with this action;
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`(vi)
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`outside photocopying, imaging, data base, graphics or design
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`services or other support services retained by outside counsel for purposes of this action; and
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`(vii)
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`other persons only upon Order of the Court for good cause shown
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`or upon written stipulation of the producing party.
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`(b)
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`Subject to Paragraphs 10-12, Highly Confidential Information of the
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`producing party shall be subject to the same restrictions as Confidential Information except that
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`it may be disclosed, summarized, described, revealed or otherwise made available in whole or in
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`part only to the persons identified in 6(a)(i) and (iii)-(vii) and otherwise in accordance with the
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`terms of this Order. Notwithstanding the foregoing, the specified attorneys designated by the
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`parties in Paragraphs 6(a)(i) to access Highly Confidential Information shall not participate,
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`either formally or informally, for the length of this litigation plus one year after a final, non-
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`appealable judgment in this litigation, in the preparation or prosecution of any patent application
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`that covers azelastine hydrochloride and fluticasone propionate nasal sprays (including
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`compositions, methods, distribution methods, uses, or processes). Such involvement in the
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`preparation or prosecution of any patent application includes: (1) obtaining disclosure materials
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`for new inventions and inventions under development; (2) investigating prior art relating to those
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`inventions; (3) making or consulting or advising in any way on strategic decisions on the type
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`and scope of patent prosecution that might be available or worth pursuing for such inventions;
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`(4) writing, reviewing, editing or approving new applications or continuations-in-part of
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`{00978043;v1 }
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 10 of 21 PageID #: 156
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`applications to cover those inventions; or (5) strategically amending or surrendering claim scope
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`during prosecution. Such involvement in the preparation or prosecution of any patent application
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`does not include representing a party with respect to a challenge to a patent-in-suit before a
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`domestic or foreign agency including, but not limited to, a reissue protest, ex parte
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`reexamination, inter partes review, covered business method review, post grant review, or any
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`other post-grant proceeding.
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`7.
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`Nothing
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`in
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`this Stipulated Protective Order shall prevent disclosure of
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`Confidential Information or Highly Confidential Information if the producing party consents to
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`such disclosure or if the Court, after notice to all parties, orders such disclosure.
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`8.
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`All Confidential Information and Highly Confidential Information disclosed
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`pursuant to this Order shall be used by a recipient thereof solely for the purposes of this litigation
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`and not for any business or competitive purposes. It shall be the duty of each party and each
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`individual having notice of this Stipulated Protective Order to comply with this Order from the
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`time of such notice.
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`9.
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`By written agreement of the parties, or upon order of the Court, the list of
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`individuals designated under Paragraph 6 to whom Confidential Information or Highly
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`Confidential Information may be disclosed may be modified or expanded.
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`10.
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`Any party filing any document, material or information designated by another
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`party as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” shall move pursuant to Local
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`Civil Rule 5.1.3 to seal such document, material or information to prevent public disclosure and
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`shall take appropriate action necessary to assure that such document, material or information
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`shall remain sealed. Should a party fail to properly file documents or materials containing
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`{00978043;v1 }
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`10
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 11 of 21 PageID #: 157
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`Confidential or Highly Confidential Information in accordance with this Order, the Local Civil
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`Rules or the ECF Policies, any party who in good faith believes that filing under seal is required
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`may, within ten (10) days of learning of the allegedly defective filing, invoke the dispute
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`procedure set forth in Paragraph 7(g) of the Scheduling Order to request an order sealing such
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`documents or materials. Nothing in this provision relieves a party of liability for damages caused
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`by the electronic filing of Confidential or Highly Confidential Information or for damages
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`caused by failure to properly file under seal documents or materials containing Confidential or
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`Highly Confidential Information.
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`11.
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`No person identified in Paragraph 6(a)(ii) shall be given access to Confidential
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`Information and no person identified in Paragraph 6(a)(iii) shall be given access to Confidential
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`Information or Highly Confidential Information unless such person shall first sign an Agreement
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`to be Bound by the Stipulated Protective Order with this Order in the form attached as Exhibit A
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`hereto, acknowledging receipt and understanding of this Stipulated Protective Order; agree to be
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`bound thereby; agree to use the Confidential or Highly Confidential Information solely for this
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`litigation, and not to disclose any Confidential or Highly Confidential Information to any other
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`person, firm, or concern in violation of this Stipulated Protective Order; and agree never to use
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`any Confidential or Highly Confidential Information, directly or indirectly, in competition with
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`the party that disclosed it, nor to encourage or induce any other person to do so. The party
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`seeking to provide such access shall deliver (by e-mail) to the attorneys for the producing party a
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`copy of the Agreement to be Bound by the Stipulated Protective Order, fully executed by such
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`person, and written notice of the intention to make such disclosure. In the case of a disclosure to
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`persons identified in Paragraph 6(a)(ii) hereof, the notice shall state the individual’s name and
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`position. In the case of a disclosure to persons identified in Paragraph 6(a)(iii) hereof, the notice
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`{00978043;v1 }
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`11
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 12 of 21 PageID #: 158
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`shall state the name and address of the person to whom disclosure is proposed and include a
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`resume of the background, qualifications and employment of such person.
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`12.
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`For proposed disclosures to persons identified in Paragraphs 6(a)(ii)-(iii) hereof,
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`the producing party, within seven (7) business days from receiving service of written notice
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`provided pursuant to Paragraph 11 hereof, may object to such disclosure by delivery (by
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`facsimile or e-mail) of a written notice of objection on the attorneys for the party seeking to
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`make the disclosure, stating the reasons for the objection. No disclosure of Confidential
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`Information or Highly Confidential Information may occur prior to the expiration of seven (7)
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`business days from the date of service of the written notice of intent to disclose unless consent is
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`granted earlier by the producing party or ordered by the Court. Consent pursuant to the
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`provisions of this paragraph shall not be unreasonably withheld. If the producing party objects to
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`the disclosure and gives written notice thereof, and the parties are unable to resolve the
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`objection, the party opposing the disclosure must invoke the dispute procedure set forth in
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`Paragraph 7(g) of the Scheduling Order to seek a protective order within ten (10) business days
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`of giving the written notice of objection; otherwise, the information may be disclosed to the
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`identified person. If such an application is made, no disclosure may be made until the objection
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`is resolved by agreement of the designating and receiving parties or the Court denies the motion.
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`Failure to timely object to the disclosure based on information then-disclosed in the written
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`notice pursuant to Paragraph 11 hereof shall operate as a waiver of the objection. Waiver as to a
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`specific disclosure shall not constitute waiver for any subsequent disclosures. In the event that
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`the dispute procedure set forth in Paragraph 7(g) of the Scheduling Order is invoked, the
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`objecting party shall have the burden of proving that disclosure should not occur.
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`{00978043;v1 }
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`12
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 13 of 21 PageID #: 159
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`13.
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`Nothing herein shall prevent a producing party from disclosing its own
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`Confidential Information or Highly Confidential Information in any manner that it considers
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`appropriate.
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`14.
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`Nothing herein shall bar or otherwise restrict counsel from rendering advice to his
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`or her client with respect to this litigation and, in the course thereof, referring to or relying upon
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`his or her examination of Confidential Information or Highly Confidential Information. In
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`rendering such advice and in otherwise communicating with his or her client, counsel shall not
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`disclose any Confidential Information or Highly Confidential Information if such disclosure
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`would be contrary to the provisions of this Stipulated Protective Order.
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`15.
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`If a party is served with a subpoena, discovery request in another action, or any
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`other request seeking by legal process the production of documents, things, information or other
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`material produced to it by another party, and designated as Confidential Information or Highly
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`Confidential Information in this action, such party shall notify promptly the original producing
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`party so as to provide the original producing party a reasonable opportunity to object to the
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`secondary production. Absent the issuance of a court order as contemplated in Paragraph 22
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`herein, Confidential Information or Highly Confidential Information produced in this action may
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`only be used in this action.
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`16.
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`If an additional party joins or is joined in this action, the newly joined party shall
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`not have access to Confidential Information and Highly Confidential Information until the parties
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`agree to a supplemental protective order governing the protection of Confidential Information
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`and Highly Confidential Information.
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`{00978043;v1 }
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`13
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 14 of 21 PageID #: 160
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`17.
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`Any third party from whom discovery is sought in this action may designate some
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`or all of the documents, things, information or other material as Confidential Information or
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`Highly Confidential Information under this Stipulated Protective Order. If it does so, then each
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`party to the action will have the same obligations with respect to the Confidential Information
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`and Highly Confidential Information of such third party as it has with respect to Confidential
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`Information and Highly Confidential Information of another party to this action.
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`Duration of Order, Objections, Modifications
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`18.
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`This Stipulated Protective Order shall remain in force and effect indefinitely until
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`modified, superseded or terminated by order of this Court, which may be entered pursuant to
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`agreement of the parties hereto. This Stipulated Protective Order shall continue in effect after
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`termination of this action and continue to be binding upon all persons to whom Confidential
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`Information or Highly Confidential Information is disclosed hereunder.
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`19.
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`Upon final termination of this action (including all appeals) the receiving party
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`shall, within sixty (60) days of such termination, either return to the producing party or destroy
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`all Confidential Information and Highly Confidential Information in its possession, including,
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`but not limited to, information stored in electronic form. In either event, the receiving party shall
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`describe the materials returned or destroyed and certify their return or destruction, with the
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`exception that outside counsel may retain subject to the provisions of this Stipulated Protective
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`Order one copy of the pleadings or other papers filed with the Court or served in the course of
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`the litigation, deposition transcripts, deposition exhibits and the trial record.
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`20.
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`If the receiving party desires to disclose Confidential Information or Highly
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`Confidential Information to persons not qualified to receive it under this Order or if the receiving
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`{00978043;v1 }
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`14
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 15 of 21 PageID #: 161
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`party disagrees with a designation by the producing party, then the receiving party and the
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`producing party shall first try to resolve such dispute. If the dispute cannot be resolved, either
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`party may seek an appropriate Court Order to protect such material. Pending a determination by
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`the Court, such information shall be treated under this Order as Confidential Information or
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`Highly Confidential Information as designated by the producing party.
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`No Waiver of Privileges
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`21.
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`If information is inadvertently produced that is otherwise properly subject to a
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`claim of attorney-client privilege, attorney work product immunity or any other privilege or
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`immunity protecting it from discovery, the fact or circumstances of such inadvertent production
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`shall in no way be relied upon as a ground to support any argument that the information is no
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`longer subject to the privilege or immunity. Such inadvertent production shall not prejudice or
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`otherwise constitute a waiver of, or estoppel as to, any claim of privilege, work product
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`immunity or other ground for withholding production to which the producing party or other
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`person otherwise would be entitled, either in whole or in part. If a written claim of inadvertent
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`production is made pursuant to this paragraph, upon receipt of such written notice, the receiving
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`party shall promptly return to the producing party or person (i) the inadvertently produced
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`material, (ii) any and all copies or reproductions thereof, and (iii) any and all copies of
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`summaries or notes based thereon or relating thereto, of which the receiving party is aware; and
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`the producing party shall within three (3) business days of the return update their privilege log to
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`include the returned document(s). If the receiving party thereafter wishes to challenge the claim
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`that the information would have properly been subject to a privilege or immunity before it was
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`inadvertently produced, it must notify the producing party of its challenge within ten (10)
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`business days of returning the inadvertent production, and invoke the dispute procedure set forth
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`{00978043;v1 }
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`Case 1:14-cv-01453-LPS Document 22 Filed 04/23/15 Page 16 of 21 PageID #: 162
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`in Paragraph 7(g) of the Scheduling Order for a ruling on the propriety of the claim of privilege
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`or immunity within ten (10) business days of returning the inadvertent production. As stated,
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`such request shall not rely upon in any manner or assert as a ground for entering such an Order
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`the fact, circumstances, or contents of the inadvertent production. During the pendency of the
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`dispute procedure, the receiving party shall make no other use or disclosure of the subject
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`material or the information contained therein. The producing party shall bear the burden of
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`proving that the inadvertently produced documents or materials are privileged or immune from
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`discovery. Pursuant to the schedule ordered by the Court upon the receiving party’s timely
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`invocation of the dispute procedure set forth in Paragraph 7(g) of the Scheduling Order seeking
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`an order compelling production of the inadvertently produced documents or materials, the
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`producing party shall file under seal with the Court a copy of the inadvertently produced
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`documents or materials for in camera inspection by the Court. A copy of the cover letter
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`forwarding the inadvertently produced information for in camera inspection by the Court shall
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`be provided to the moving party. If the receiving party prevails on its challenge to the producing
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`party’s claim of privilege or immunity, the producing party shall promptly produce the material
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`to the receiving party. Once information or a document containing the information has been:
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`used during a deposition; used as an exhibit to a pleading filed with the Court; identified for
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`potential use at trial, including in discovery responses; or otherwise disclosed to the Court, the
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`producing party has thirty (30) calendar days from the date of disclosure to provide notice of the
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`inadvertent production. Notwithstanding any other provision of this Stipulated Protective Order,
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`failure to provide notice within this thirty-day period shall constitute a waiver of any and all
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`applicable privileges and immunities with respect to the inad