Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 1 of 21 PageID #: 195
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`HOSPIRA, INC.,
`
`. Plaintiff;
`
`AMNEAL PHARMACEUTICALS .LLC
`
`Defendant.
`
`Civil Action No. 15-697-RGA
`
`~STIPULATED PROTECTIVEDRDER
`
`Plaintiff Hospira, Inc. (''Hospira") and Defendant Amneal Pharmaceuticals LLC
`
`("Amneal';; collectively with Hospira,.the "Parties"); having stipulated to the entry of this
`
`Protective Order ("Order") pursuant to Federal Rule of Civil Procedure 26( c) to facilitate the
`
`orderly completion of discovery, request entry of the following Protective Order.
`
`1.
`
`Scope of Order, This Protective Order shall apply to all information; documents,
`
`and things produced by any Producing Party or third-patty to a Receiving Party in the
`
`above-captioned litigation (the "Action") including, without limitation, all testimony adduced at
`
`depositions, documents or things produced in response to requests for the production of documents
`
`and things; answers to interrogatories, responses to requests for admission, ai1d all other discovery
`
`takei1 pursuant to the Federal Rules of Civil Procedure; as well as hearing or trial transcripts,
`
`matters in evidence, and any other infotmation fatnished, directly or indirectly, by or on behalf of
`
`any Paiiy to this Action.
`
`2.
`
`Definitions.
`
`a.
`
`The term "Producing Party" shall mean the Party or person designating
`
`documents oi' ii1foriiiation as Confidential Information under this Order.
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 2 of 21 PageID #: 196
`
`b.
`
`The term "Receiving Party;; shall mean the Party to whom the Confidential
`
`Irtformation is diSclOsed.
`
`c.
`The term "fo.:House Counsel" shall meari attorneys who are employees of a
`Party or employed by an affiliate of a Party (e.g., a parent compru1y) who are responsible
`
`for overseeing this Action for a Party and who are not involved in competitive decision(cid:173)
`
`making and do not and shall not have responsibility for, or involvement in, prosecuting or
`
`filing any patent applications involving dexmedetomidine or dexmedetomidine products,
`
`and do not and shail not hav(;} responsibility foi· submitting regulatory doctihlents to or
`
`communications with regulatory agencies involving dexmedetorilidine or
`
`dexmedetomidine products, including without liinitatioti any Citizen Petition, or the like,
`
`d.
`
`The term "Confidential Information" shall mean and include any
`
`information, document, or thing, or portion of any docwnertt or thing:
`
`i.
`
`that contains: trade secrets, competitively sensitive technical, marketing,
`
`financial; sales; or other confidential business informatfon (including but
`
`not limited to non-public business plans and strategies; non-'pubiic business
`
`relationship information pertaining to potential and/or existilig customers,
`
`competitors, suppliers; distributors, affiliates, subsidiaries, and parents;
`
`information related to budgeting; accounting, sales figures, and advertising
`
`expenditures; non-public information concerning research, development,
`
`testing, or evaluation of phai·maceuticals; non-public patent applications
`
`and files; non-public nianufacturing infoi·inatibn; non-public license
`
`agreements or negotiations; non-public information concerning drug
`
`appiications; and non-public communications with the Food and Drug
`
`2
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 3 of 21 PageID #: 197
`
`Administration). Illformation designated as "Confidential Information"
`
`may include, but shall not be limited to, materials relating to the research,
`
`development, manufactur!rtg, marketing, sales and regulatory approval of
`
`dexmedetomidine or dexmedetomidihe products;
`
`ii.
`
`that contains priVate or confidential persohal information (including but riot
`
`liinited to information concerning co.i:ripensa~ion, evaluatfons, and other
`
`employment information);
`
`iii.
`
`that contains information received irt confidence from third parties; or
`
`iv. which the Producing Party otherwise believes in good.faith to be entitled to
`
`protection tinder Rule 26( c)(l) of the Federal Ruies of Civil Ptocedute.
`
`v. All. copies, recordings, abstraCts, excerpts, analyses, or othe1' writhigs,
`
`documents or things that contain, reveal, or otherwise diselose such
`
`Confidential Information shall be deemed Confidential Info1mation.
`
`3.
`
`Mamier of Designating Confidential Information. Any Party to this Action and
`
`any third party shall have the right fo designate information, documents, or things, ih accordance
`
`with the procedures set fmih herein, as "Confidential Iriformation" subject to this. Order. The
`
`Producing Party may designate material as Confidential Information in the following manrier:
`
`a.
`
`Documents a~d Things. the Producing Party shall label or mark
`
`documents and things that constitute or contain Confidential Information as
`
`"CONFIDENTIAL.;, At least the first page Of a document and every page ofthe document
`
`on which Confidential Information appears shall be so labeied or marked.
`
`b.
`
`Non,. Written Material. With respect to non~written material and other
`
`material that cannot be marked on its face; such as recordings; magnetic media,
`
`3
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 4 of 21 PageID #: 198
`
`photographs, and things, the Producing Party shall label or m~ark the material, the
`
`container, or the package as "CONFIDENTIAL."
`
`c.
`
`Inspections of Docmnents and Things. Inspections of documents and
`
`things by any Party shall be conducted by persons authorized to access Confidential
`
`Information under Paragraph 6 below; Such persons shall initially treat all infmmation
`
`obtained from any inspection as Confidential Information until such time as copies of the
`
`documents or thh1gs frorri the inspection are produced, and, theteafter, such produced
`
`documents and thirigs shall be treated ill ac.cordance-with the corifldetitiality designation
`
`appearing on the document or thing at the time of its production.
`
`d.
`
`Court Filings and Written Discovery. Any affidavit, brief,
`
`memorandum, or other paper filed with the court in tllis Action, or any discovery request or
`
`response served on. a Party, contairiiiig Confidential Information, shall be designated on its
`
`face near the caption and on every page coritairiirig such infoi·mation with an appropriate
`
`legend in the form set forth in Paragraph 3(a). In addition; every response to W!itten
`
`discovery that contains or constitutes Confidential Information shall indicate that it
`
`constitutes or contains such information.
`
`e.
`
`Deposition Te~timony; When deposition testimony is or
`
`contains Confidential Information, any attorney of record present may so designate that
`
`testimony by notifying others present on the record of the deposition. The deposition
`
`reporter shall then so mark the transcript that reports that po1iion of the testimony; The
`
`Parties also may designate the entire deposition testimony of' a witness as containing
`
`Confidential Iilformation: With respect to any depositions that involve a disclosure of
`
`Confidential Information, incfoclfog exhibits; the Producing Party shall have until fomteen
`
`4
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 5 of 21 PageID #: 199
`
`( 14) caiendat days after receipt of the deposition transcript within which to inform all other
`
`Parties in writing of the specific pages and lines of the transcdpt arid exhibits that are to be
`
`designated, which period may be extended by agreement of the Parties. No such
`
`deposition transcript or exhibits or infonnation contained therein shall be disclosed to any
`
`irt&viduai other than the individuals described in Paragraphs 6(a)-(e) and (g)-(h) and the
`
`deponent during these fourteen{l4) .calendar days, and no iridividnal attending such a
`
`deposition shall disclose the cont~nts of the deposition to any individual other than those
`
`described in Paragraphs 6(a)-(e) and (g)-(h) during said fourteen (14) calendai· days. Upon
`
`being informed that certain portions of a deposition are to be designated as Confidential, all
`
`Parties shall immediately limit disclosure of that transcript in accordance \vi th Paragraphs
`
`4 and 6. If no such designations are made either on the record atthe time the deposition is
`
`taken 01; within the time period specified above, the transcript and exhibits shall not be
`
`deemed to contain Confidential Information; At the expiration of the fourteen (14)
`
`calendar day period, unless designations in writing or at deposition are provided prior to
`
`the expiration df said period, the entire transcript and exhibits, or any pait thereof that is not
`
`designated; shall be deemed non-confidential.
`
`4.
`
`Limited Use of Confidential InformatiOn. All Confidentiai Information received
`
`from a Producing Party shall be disclosed, disseminated, and used by the Receiving Party solely
`
`for purposes of the prosecution or defense of this Action, or any related appellate proceeding, and
`
`shall not be used by the Receiving Party for arty other business; commercial, competitive,
`
`personal, or other purpose, including without limitation use or citation in any subniissions to the
`
`FDA; USPTO; or other regulatory bodies, and shall not be disclosed by the Receiving Party to
`
`5
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 6 of 21 PageID #: 200
`
`anyone other than those set forth in Paragraph 6, unless and until the restrictions herein are
`
`i"einoved either by written agreement of the Producing Party or by Order of the Court.
`
`5.
`
`Maintenance of Coi1fidential Information. Designations of Confidential
`
`Information shall constitute a representation that there.is a valid basis for such designation. The
`
`attorneys of record for the Parties.shall exercise reasonable efforts to ensui·e that the information
`
`and documents governed by this Order are (i) used only for the purposes set forth herein, and (ii)
`
`disclosed only to authorized persons. Moreover, any person in possession of Confidential
`
`Infonnation shall exercise reasonably appropriate care with regard to the storage, custody, or use
`
`of such iiiformation to ensure that the cortfidentia.l nature of the same is maintained.
`Access tO Confidential biformation. Except with the priot written·
`
`6.
`
`consent of the Producing Party, and subject to Paragraph 19below, mak:rial designated as
`
`"Confidentiai Information" pursuant to this Protective Order, including copies thereof, extracts
`
`there from, compilations and/or suntirtaries thereof and information therein, any writing or thing
`
`containing or revealing such material, rii;:iy be disclosed only to the following persons:
`
`a.
`
`Any attorney who serves as outside co tinsel of record to any Party to this
`
`Action and supporting personnel employed in the law firm(s) of outside litigation counsel
`
`of record, such as attorneys, paralegals, clerks, secretaries, c61itract attorneys, IT
`
`personnel, and clerical personnel for the respective Parties· to this litigation;
`
`b.
`
`The following In-House Counsel employed by each of the Parties who are
`
`actively working on or are responsible for this case:
`
`~ Hospita: Leah Taylcir, Vice President, Intellecttial Prope1iy;
`
`Michael P. Bauer, Senior Counsel, Intellectual Property;
`
`6
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 7 of 21 PageID #: 201
`
`• Ainneal: Lars Taavola, Senior Patent Counsel; Bryan
`
`Sommese, Director, Global Intellectual Property; and Kenrieth
`
`Ze~dner, Senior Patent Counsel, Senior Director, Global
`
`Intellectual Property;
`
`provided that before the disclosure of any Confidential Information, such In-House
`
`CoUiisel has sigried the undertaking attached hereto as Exhibit A; and the undertaking
`
`has been provided to outs_ide counsel for the other Party. Should the Parties seek to
`
`modify this Order pursuant to Paragraph 25 to permit access to Confidential
`
`Information by In-House Counsel not specifically identfied above, the Parties \viii
`
`confer with each other in good faith to reach agreement prior to seeking modification; Iri
`
`the event the Patties are unable to reach agreement; they will seek the assistance of the
`
`Court.
`
`c.
`
`The Parties' independent expert(s) or cohsultant(s) retained by outside
`
`counsel for purposes of this action, not mcludiilg officers, directors, or employees of any
`
`Party; provided they have signed the undertaking attached hereto as Exhibit A and have
`
`beeh approved by the Producing Party according to Paragraph 8(b) and who are empfoyed,
`
`retained, or other\:vise consiilted by outside counsel or record to assist in any way in the
`
`preparation for or trial of this litigation;
`
`d.
`
`Secretarial, paralegal; clerical, duplicating, and data processing personnel
`
`of the foregoing;
`
`e.
`
`The Court and com1 personnel, in the conduct of their official duties, and
`
`the trier of fact;
`
`7
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 8 of 21 PageID #: 202
`
`·'
`
`f.
`
`Any person from whom testimony is taken, if it appears that such person
`
`was the author, recipient or intended recipient of the inforniation, prepared br reviewed the
`
`ii1formation prior to its production in the Action, or is employed by the Party who produced
`
`the infonrtation, document, or thing, or if the Producing Party consents to such disclosure;
`
`g.
`
`Vendors retained.by or for the Parties to assist in preparing for pretrial
`
`discovery, trial, and/or hearings including, but not lilnited to, court repmters, litigation
`
`suppciii ser\iiCes (e;g., photocopying, videotaping, scanning; translating, or organizing,
`
`storing or retrievihg data in any form or medium), jury coiisultants, individuals to prepare
`
`demonstrative and audiovisual aids foi· use in the coum·oom or in depositions or mock jury
`
`sessions, including staff, stenographic, and clerical employees of any of the foregoing
`
`whose duties·and responsibilities require access to such materials; provided, however, that
`
`the vendor has an obligation of confidentiality to the Receiving Pa1iy, and the Receiving
`
`Party has made such vendor aware of the provisions of this Orde1;; and
`
`h.
`
`Any other person, either with the prior writteii consent of the Producing
`
`Party or pursuant to an Order of the Court
`
`7.
`
`Limitations on Disclosure of Confidential Information. Confidential
`
`!Ii.formation shall be used only by individuals permitted access to it under Paragraph 6.
`
`Confidential Information and copies thereof shall not be disclosed in any manner to any other
`
`individual, until and unless (i) outside counsel for the Party asserting confidentiality waives the
`
`claim of confidentiality, or (ii) the Court orders such disclosure. If any such information is
`
`disclosed to any person not entitled to receive disclosure of such information under this Order,
`
`·· counsel for the Receiving Party will promptly inform counsel for the Producing Party and, without
`
`8
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 9 of 21 PageID #: 203
`
`prejudice to other rights and remedies of any party, iiiake a reasonable good faith effort to retrieve
`
`such matedal and to prevent further disclosure of it by the person who received such information.
`
`8.
`
`Disclosure to and Identification of Experts and Consultants; If any Party
`
`desires to disclose "CONFIDENTIAL" information of aiioiher Party to any- expe1t or consultant, it
`
`inust first identify each expe1t or consultant to the Producing Patty's attorneys iii writing. Stich
`
`identification shall ilwlude: (1) the proposed expeit or consultm1t's full name, professional
`
`address, and employer(s); and (2) ail tip-to-date curriculmnvitae~ (3) a_list of the cases in which the
`
`expert or_ consultant has testified at a deposition or at trial within the last four years; and ( 4) an
`
`executed copy of the Aclmowledgement of Proteqtive Order attached hereto as Exhibit A. In
`
`addition, the following procedUl'es shail be followed:
`
`a.
`
`No Confidential Information shali be revealed or disclosed, in whole or i11
`
`part, directly or indirectly, to any individuals described in Paragraphs 6(b) or 6( c) until
`
`such individual executes an undertaking in the form attached hereto as Exhibit A. The
`
`original of each undertaking shali be retained, until the conclusion of this Action including
`
`all appeals, by counsel for each Paity who intends to or does disclose to such individual
`
`any Confidential Information.
`
`b.
`
`If a Producing Party reasonably believes it would be harmed by the
`
`proposed disclosure, it may object in writing to such disclosure within five (5) business
`
`days after receipt of the notice. In the event of an objection, the Pmiies shall promptly
`
`.
`.
`confer to attempt to resolve the concerns giving rise to the objection. If the Parties are
`
`unable to reach agreement regarding such disclosure, the Party seeking disclosure tmiy
`
`request that the Court issue an order permitting the disclosut·e. No disclosure shall be made
`
`until the expiration of the five (5) business day period for the Producing Party to make an
`
`9
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 10 of 21 PageID #: 204
`
`objection, or if such objection is made, iuitil the resolution of the objection, whether
`
`formally or informally ..
`
`c.
`
`It is understood and agreed that if pursuant to this Order, a Party identifies a
`
`person as an expert, no other Party shall contact the expert 11or subject the expert to
`
`discovery to inquire into matters arising within the expert's consultation with the
`
`designating Party; except as provided by Federal Rule of Civil Procedure 26(b )( 4) or by
`
`Order of the Comt. Notwithstanding Fed.R. Ch1• P. 26(b)(4)(C)(i), (ii) and (iii); the Parties
`
`agree thatthe following materials will be excluded from discovery in this case: expert
`
`witnesses; notes, drafts, and communications with counsel.
`
`d.
`
`The disclosure of the identity of a non-testifying expert will not be a waiver
`
`of any privilege that applies to communications with the expert or the expert's work
`
`product. The Parties agree that by stipulating to the entry of this Order, the Pmiies do not
`
`otherwise intend to modify in any way the discovery rules applicable· to experts.
`
`9.
`
`Use During Examination or Cross Examhlation. Nothing herein shall limit a
`
`Party's ability to use Confidential InformatiOn to examine or cross-examine at deposition or trial
`
`(or other heariilg) persons who are (a) a currently employed officer or employee of a Producing
`
`Party, and such Confidential Inforination is within the scope of the ordinary performance of the
`
`duties of such officer or employee; (b) an expe1t of a Producing Party; or ( c) designated by the
`
`Producing Pmty as a Rule 30(b)(6) witness and such Confidential Information is within the scope
`
`of the witness's 3 O(b )( 6) designation ..
`
`1 O,
`
`Limitations on Attendance at Deposition~ A Party or non-party may exclude
`
`from portions of a deposition that inquire about or disclose;, Confidential Information any person
`
`who is not entitled to have access to Confidential Information under this Order. If individuals not
`
`10
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 11 of 21 PageID #: 205
`
`authorized to access Confidential Information fail to leave the deposition room during any portion
`
`of the deposition that inquires about or discloses what counsel for the Producing Party identifies as
`
`Confidential Information, counsel for the Producing Party may seek relief from the Court and,
`
`pending resolution of its request for relief, instruct-the witness not to answer questions relating to,
`
`or limit disclosui·e of, the Confidential information at issue.
`
`11.
`
`Publicly Available Iriformatfon; The following categories of information shall be
`
`deemed not to be Confidential Infor1irnticin:
`
`a.
`
`Any informatio1i that at the tiiiie of its disclosure in this action is part of the
`
`public domain by reason of prior publication or otherwise;
`
`b.
`
`Any information that after its disclosure in.this actibn has become part of
`
`the public domain by reason of prior pubiication or otherwise through no improper act,
`
`omission, or fault of any Receiving Paiiy;
`
`c.
`
`Any information that at the time of its disclosure in this action is rightfully
`
`in the possession of the Receiving Party, its trial counsel; or any expeit retained by at for
`
`the Receiving Party under no obligation of confidentiality;
`
`d.
`
`Any information that after its disclosure ih this action is rightfully received
`
`without any obligation of confidentiality by the Receiving Paiiy; its trial counsel, or any
`
`expert retained by or for the Receiving Party from a third party having the right to disclose
`
`such information; or
`
`e.
`
`Any information that was independently developed by the Receiving Party
`
`without the use of orreliance upon any designated material disclosed by the Producing
`
`Party.
`
`11
`
`'
`
`!
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 12 of 21 PageID #: 206
`
`12.
`
`Filing Under Seal. If any Party files Confidential Information with the Court,
`
`including documents that i·eveal, diSclose, or summarize information contained in documents
`
`designated as "CONFIDENTIAL" such shall be filed under seal and subsequently redacted
`
`according to the Local Rules and the District of Delaware's Administrative Procedures Governing
`
`Filing and Service by Electronic Means (the "CM!ECF Procedm'eif'), as applied and interpreted in
`
`connection with the District of Dela\Vare.CM/ECF Usei·'s Manual Preservation of Rights and
`
`Privileges.
`
`13.
`
`Redaction of Documents and Thii1gs. Documents and things produced or made
`
`available for inspection may be subject to redaction, in good faith, by the Producing Paiiy, of
`
`information subject to the attorney-client priviiege, work product inununity, or any other
`
`applicable privilege or immunity. Each such redaction, regardless of size, shall be clearly labeled.
`
`This Paragraph shall not be construed as a waiver of any Party's right to seek disciosure of
`
`redacted information. All documents based on attorney client privilege, work product immunity;
`
`or any other applicable privilege or immunity shall be listed on a privilege log in accordance with
`
`Federal Rule of Civil Procedure 26(b )(5).
`
`14.
`
`Challenging Designations. There shall be no obligation on a Receiving Party to
`
`challenge a designation by a Producing Party as "Confidential Information" when such
`
`designation is made, and failure to do so shall not preclude a subsequent challenge. If a Receiving
`
`Party believes in good faith that information should not be designated as "Confidential
`
`Information" that Receiving Party must specify to the Producing Party in wdting (i) Confidential
`
`. Infonnation challenged and (ii) the grounds for questioning the. designation. Within seven (7)
`
`business days, or within suci1 additional time as is reasonable (taking into account the number of
`
`documents or other information challenged) and as agreed to by counsel or as ordered by the
`
`12
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 13 of 21 PageID #: 207
`
`Court, the Producing Party must respond In writing stating whether it will maintain, change, or
`
`remove the designation. If the objecting Party and the Producing Patty do not reach agreement
`
`within five (5) busiriess days after the Producing Pru.ty has responded to the objecting Party, then
`
`the objecting Party may move the Courtfor an order that the ii1formation or material shall not be so
`
`designated. The challenged designation shall remain in effect until the Court enters an Order
`
`removing the designation or the Producing Party withdraws its objection.
`
`15.
`
`Use of Confidential IilformatiOil in Court. If the need arises
`
`during trial or at any hearing before the Court for any Paity to disclose Confidential Information, it
`
`may do so only aftei· giving notice to the Producing Party and as directed by the Court.
`
`16.
`
`Inadvertent Disclosure of Confidential Informatfon. To the
`
`extent consistent with applicable law, the inadve1tent or unintentional disclosure of Confidential·
`
`Infommtion that should have been designated as such, regardless of whether the information,
`
`docuinent, or thing was so designated at the time of disclosure, shall ilot be deemed a waiver in
`whole or in part of a Pa1ty' s claim of confidentiality; either as to the specific information,
`
`document, or thing disclosed or as to any other material or infobnation coricerni11g the sarhe cir
`
`related subject matter; Such inadvertent or unintentional disclosure inay be rectified by the
`
`Producing Party promptly notifying in writing, upon discovery of the unintentional disclosure,
`
`counsel for all Parties to whom the material was disclosed that the material should have been
`
`designated as Confidential h1formation.. Such notice shall constitute a designation of the
`
`information, document, or thing as Confidential Information under this Order; The Producing
`
`Patty shall provide copies of the propedy marked information along with the written notice, or as
`
`soon thereafter as practitable. Upon receipt of the notice and propedy marked information, the
`
`Receivirig Patty shall, within 10 business days; return to Counsel for the Producing Party or
`
`13
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 14 of 21 PageID #: 208
`
`destroy all unmarked copies of said Confidentlal irtfotmationto the extent practicable and shall not
`
`retairi copies thereof, and shall undertake a best effort fo correct the disclosure of such information
`
`contrary to the re~designation, including infoi1ning.any unauthorized recipients of the existence
`
`and terms of this Order and demanding the reiurn of the information. However, disclosure of such
`
`Confidential Info11nation prior to the receipt of notice under this Paragraph 16 shall not be deemed
`
`a violation of this Order.
`
`17;
`
`Inadvertent Disdosure of PriVileged or Work Product Irtformation. When the
`
`inadvertent or mistaken disclosure of any information, document, or thing protected by privilege,
`
`work-product immunity, or any other applicable privilege or immmiity is disfo,;ered by the.
`
`Producing Party and brought to the attention of the Receiving Party, the treatment of such matetial
`
`shall be in accordance with Federal Rule of Civil Procedure 26(b )(5)(B). Such inadveitent or
`
`rriistaken disclosure of such information, document, or thing shall not constitute a waiver by the
`
`Producing Party of any cfainis of privilege, work-produet immunity, or any other appiicable
`
`privilege or immunity. Within ten (1 O) bi1siness days of notice of such inadvertent disclosure, the
`
`documents ot materials described in that notice shall be returned to counsel for the Producing
`
`Party, sequestered pursuant to Rule 26(b )(5)(B), and/or all copies of such documents or materials
`
`in the recipient's possession shall be destroyed, and any future reference to such documents or
`
`·materials in any other documents or materials shall be ih accordance with Federal Rule of Civil
`
`Procedure 26(b)(5)(B).
`
`18.
`
`Third Party Production. Third parties who produce information in this action
`
`may avail themselves of the provisions of this Order by signihg a copy of this Protective Order and
`
`serving the same on all counsel of record, and in such event discovery materials produced by third
`
`patties shall be treated by the Parties in conformance with this Order.
`
`14
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 15 of 21 PageID #: 209
`
`19;
`
`Efforts by Non-Parties to Obtain Confidential Infor:riuitiori. In the event that
`
`any of the Parties (i) is subpoenaed in anothe1; action, (ii) is served with a demand in another action
`
`to which it is a party, or (iii) is served with any other legal process by a person not a party to this
`
`litigation, and is requested to produce or otherwise disclose discovery material that is designated as
`
`Confidential Inforinatioh by another Party, the Party subpoenaed or served ih accordance with this
`
`Paragraph shall object to production of the Confidential Information and shall give written notice
`
`to the Producing Party within ten (10) calendar days from the receipt of such a request.. The
`
`Receiving Party shall cooperate to the extent necessary to permit the Producing Party to seek to
`
`quash or otherwise address such subpoena, process or discovery request and shall not produce or
`
`disclose the documents, things, or information unless the Producing Party consents in writing to
`
`production or the Receiving· Paity is ordered by a court of competent jurisdiction to produce or
`
`disclose the documents, things, or information. Nothing in this Order shall be construed as
`
`precluding producti.on of Confidential Information covered by this Order in response to a lawful
`
`court order or by consent of' the Producing Party.
`
`20.
`
`Disclosure to Unauthorized Persons. If Confidential Information is disclosed to
`
`any person not entitled to receive disclosure of such information under this Order, counsel for the
`
`Receiving Party responsible for the unauthorized disclosure shall immediately inform counsel for
`
`the Producing Party of all pertinent facts relating to the unauthorized disclosure including, without
`
`limitation; an identification of the Confidential Information disclosed and the person(s) to whom
`
`the unauthorized disclosure was made. Without prejudice to other rights and remedies of any
`
`Party; counsel for the Receiving Party also shall use its best efforts to recover immediately the
`
`material disclosed without authorization and to ensure that no fmiher or greater unauthorized
`
`disclosure or use of such information is made. In such event; the Receiving Party shall also (a)
`
`15
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 16 of 21 PageID #: 210
`
`promptly inform such person of all the provisions of this Order; (b) identify such person
`
`immediately to the Pi'odticirtg Party; and ( c) request such person to execute the Acknowledgment
`
`of ProtectiVeOrder in the forni shown in Exhibit A.
`Termination of Access. In the event that any pe1•sori or Party ceases to be engaged
`
`21.
`
`in the conduct of this litigation, such person's or Party's. access to any and all Confidential
`
`Information shall be terminated, and all copies thereof shall be returned or destroyed as soon as
`
`practicable after such person or Party ceases to be engaged in the conduct of this litigation. The
`
`provisions ofthis Oi·der shall remain in full force and effect as to any petson or Party who
`
`previously had access to ai1y Confidential Information; except as !'nay be specifically ordered by
`
`the Court or consented to by the Producing Prufy.
`
`22.
`
`Termjnation of Action.
`
`a.
`
`Upon final conClusion of this Action (including appeals), each Party or
`
`other individi1al subject to the tei'ms hereof shall return to the originating source; or certify
`
`destruction of, all originals and unmarked copies of doctiments and things contairtirig
`
`Confidential Information; provided, however; that outside counsel of record (as identified
`
`in Paragraph 6(a)) shall be entitled to retain its correspondence file for the case; a copy of
`
`all court papers, discovery responses and requests (excluding produced documents and
`
`things); deposition and trial transcripts; exhibits used in affidavits, at depositions and at
`
`trial; and attorney work product (except for certain litigation databases, as set forth below).
`
`Confidential Infoi·mation kept by outside counsel pursuant to-this paragraph shall continue
`
`to be maintained in accordance with the terrris of this OrdeL
`
`b.
`
`Litigation databases (or portions of databases) containing the fuli text of
`
`Confidential Information or abstracts thereof shall be destroyed in accordance with this
`
`16
`
`

`

`Case 1:15-cv-00697-RGA Document 33 Filed 12/21/15 Page 17 of 21 PageID #: 211
`
`paragraph, except that any such portion of such database containing materials described in
`
`part a of this paragraph may be maintained by outside counsel or record for the Parties.
`
`c.
`
`Upon final termination of this Action, no one other than outside counsel cif
`
`record for the Parties shall retahi any Confidential information received from any other
`
`Party or third party.
`
`d.
`
`Outside counsel of record shall certify their compliance with the provisions
`
`of this Paragraph within sixty (60) days of the termination of this Actioi1.
`
`e.
`
`Th