Case 1:18-cv-00303-RGA Document 33 Filed 05/31/18 Page 1 of 27 PageID #: 876
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`BAXTER HEALTHCARE CORPORATION,
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` Plaintiff,
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`v.
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`HOSPIRA, INC. and ORION CORP.,
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` Defendants.
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`)
`)
`)
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`)
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`C.A. No. 18-303-RGA
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`[PROPOSED] PROTECTIVE ORDER
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`Whereas this is a case involving a patent dispute relating to the drug dexmedetomidine
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`hydrochloride injection;
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`Whereas discovery in this action may involve the disclosure of certain documents, things
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`and information (including electronically stored information) in the possession, custody or control
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`of a party or a non-party that constitute or contain trade secrets or other confidential research,
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`development, manufacture, regulatory, financial, marketing or other competitive information
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`within the meaning of Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure or contain
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`information involving privacy interests of individuals; and
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`Whereas the parties have in good faith conferred and have agreed upon the terms of a
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`Protective Order and for good cause shown; therefore
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`The parties stipulate, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure,
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`subject to the approval of the Court, to the following Protective Order:
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`1.
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`Scope of Protection.
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`1.1
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`This Protective Order shall govern any record of information, designated pursuant
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`to ¶ 3 of this Protective Order, produced in this action, including, without limitation, all designated
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`deposition testimony, all designated testimony taken at a hearing or other proceeding, all
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`

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`designated interrogatory answers, documents and other discovery materials, whether produced
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`informally or in response to interrogatories, requests for admissions, requests for production of
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`documents or other formal methods of discovery.
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`1.2
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`This Protective Order shall also govern any designated record of information
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`produced, exchanged, or served in this action pursuant to required disclosures under any federal
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`procedural rule or District of Delaware Local Rules, and any supplementary disclosures thereto.
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`1.3
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`This Protective Order shall apply to the parties and any non-party from whom
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`discovery may be sought and who desires the protection of this Protective Order. If an additional
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`party unrelated to Baxter Healthcare Corporation, Hospira, Inc., or Orion Corp. (or a successor in
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`interest to any of them) joins or is joined in this action, the newly joined party shall not have access
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`to documents or other information produced under protection of this Protective Order until the
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`parties agree to a supplemental protective order.
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`2.
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`Definitions.
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`2.1 As used herein,
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`the
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`terms “CONFIDENTIAL” and “CONFIDENTIAL
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`INFORMATION” (which are used herein interchangeably and are synonymous with one another)
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`mean any information used by a party or non-party in or pertaining to its business, which
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`information is not publicly known, including any form of trade secret or other confidential
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`research, development, or commercial information within the meaning of Fed. R. Civ. P.
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`26(c)(1)(G). Information shall be designated CONFIDENTIAL INFORMATION if the
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`information constitutes any non-public information actually exchanged by the parties during
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`discovery, regardless of whether this information relates to dexmedetomidine hydrochloride
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`products. This includes, but is not limited to: (i) any approved or unapproved (whether pending
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`or not yet filed) new drug application or abbreviated new drug application that purports to cover
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`2
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`any dexmedetomidine hydrochloride injection product (“Dexmedetomidine Drug Application”);
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`(ii) any correspondence with the FDA regarding any Dexmedetomidine Drug Application; (iii)
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`drafts of items (i) or (ii) above; (iv) sensitive, and/or proprietary information pertaining to
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`marketing, sales, revenues, or profits, or any scientific or technical information relating to the
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`research and development of a dexmedetomidine hydrochloride injection product, or to any
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`existing products or products in development; and/or (v) any document attaching any of items (i)-
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`(iv) of
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`this ¶ 2.1. The designation of “CONFIDENTIAL” or “CONFIDENTIAL
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`INFORMATION” by a party or non-party who seeks to invoke protection under this Protective
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`Order (“Producing Party”) constitutes its representation that it reasonably and in good faith
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`believes that the designated material constitutes or contains information as described above.
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`2.2 CONFIDENTIAL INFORMATION shall include: (a) all copies, extracts, and
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`complete or partial summaries prepared from such CONFIDENTIAL INFORMATION; (b)
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`portions of deposition transcripts and exhibits thereto that contain, summarize, or reflect the
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`content of any such CONFIDENTIAL INFORMATION; (c) portions of briefs, memoranda, or
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`any other writings filed with the Court and exhibits thereto that contain, summarize, or reflect the
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`content of any such CONFIDENTIAL INFORMATION; (d) written discovery responses,
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`answers, and/or contentions that contain, summarize, or reflect the content of any such
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`CONFIDENTIAL INFORMATION; and (e) deposition testimony designated in accordance with
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`the paragraphs below.
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`3.
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`Designation.
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`Each party shall have the right to designate information as CONFIDENTIAL, subject to
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`this Protective Order. It shall be the duty of the Producing Party to give notice, in accordance with
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`the provisions of this Protective Order, of the information designated to be covered by this
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`3
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`Protective Order. To the extent that material is marked CONFIDENTIAL, such material shall
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`only be revealed to or used by limited categories of individuals, as provided for herein, and shall
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`not be communicated in any manner, either directly or indirectly, to any person or entity not
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`permitted disclosure pursuant to this Protective Order. Any copies of such material, abstracts,
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`summaries or information derived therefrom, and any notes or other records regarding the contents
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`thereof, shall also be deemed CONFIDENTIAL accordingly, and the same terms regarding
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`confidentiality of these materials shall apply as apply to the originals.
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`4.
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`Marked Documents and Things.
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`4.1
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`Each page of a document and each thing that constitutes or contains
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`CONFIDENTIAL
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`INFORMATION
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`shall be
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`labeled or marked with
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`the
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`legend
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`“CONFIDENTIAL,” “CONFIDENTIAL – PROTECTIVE ORDER MATERIAL” or
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`“CONFIDENTIAL INFORMATION – PROTECTIVE ORDER MATERIAL” when the
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`document or thing is produced to the receiving parties. Anything that cannot be so labeled or
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`marked on its face shall be labeled or marked by placing the appropriate legend on a container or
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`package in which it is produced or on a tag attached thereto. Material produced without any such
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`legend clearly indicating that it is subject to this Protective Order shall not be subject to the
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`protections afforded to such information under this Protective Order unless otherwise agreed by
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`the parties, ordered by the Court, or designated in accordance with ¶ 16 of this Protective Order.
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`4.2
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`Should a party opt to make materials available for inspection in response to a
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`discovery request, such inspection shall be conducted on an outside-counsel-eyes-only basis. Once
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`produced, such materials shall be treated by the receiving parties in accordance with any
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`confidentiality designation made at the time of their production.
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`4
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`4.3
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`Documents and things produced or made available for inspection may be subject to
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`redaction, in good faith by the Producing Party, of information that is neither relevant to the subject
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`of this litigation nor reasonably calculated to lead to the discovery of admissible evidence, or is
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`subject to the attorney-client privilege or to work-product immunity. Each such redaction,
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`regardless of size, shall be clearly labeled as redacted. Information involving the privacy interests
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`of one or more individuals or subject to data privacy restrictions (such as social security numbers,
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`dates of birth, private addresses or telephone numbers, or other personal information) can be
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`redacted in accordance with the provisions of this paragraph. This paragraph shall not be construed
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`as a waiver of any party’s right to seek disclosure of redacted information. All documents redacted
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`based on attorney-client privilege or work-product immunity shall be listed on a privilege log in
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`accordance with Federal Rule of Civil Procedure 26(b)(5).
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`5.
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`Limit On Use And Disclosure Of Designated Information.
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`5.1
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`The production of CONFIDENTIAL INFORMATION by a party under the terms
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`of this Protective Order shall not be construed to mean that the Producing Party has waived any
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`objection to the production, relevancy or admissibility of such information. Nothing contained
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`herein shall preclude any party from opposing any discovery on any basis. Further, nothing in this
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`Protective Order constitutes an admission by any party that any specific item of CONFIDENTIAL
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`INFORMATION is a trade secret or otherwise confidential and proprietary to a party.
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`5.2
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`Each party and all persons bound by the terms of this Protective Order shall use any
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`information or document designated CONFIDENTIAL only in connection with the prosecution or
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`defense of this action, except by consent of the parties or order of the Court. Such use includes,
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`but is not limited to, offering evidence and testimony at trial and/or other hearings, preparing for
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`and conducting discovery, preparing for trial, and supporting or opposing any motion in this action.
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`5
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`Except as provided for in this Order, no party or other person shall disclose or release any
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`information or document governed by this Protective Order to any person not authorized pursuant
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`to this Protective Order to receive such information or document.
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`Material designated CONFIDENTIAL, and all information derived therefrom, shall be
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`used only by persons permitted access to such information under this Protective Order, shall not
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`be disclosed by the receiving parties to any party or person not entitled under this Protective Order
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`to have access to such material, and shall not be used by the receiving parties for any purpose other
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`than in connection with this action, including without limitation for any research, development,
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`manufacture, patent prosecution, financial, commercial, marketing, regulatory, business, or other
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`competitive purpose (except for settlement of the above-captioned case).
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`5.3
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`Absent consent of the producing parties and/or further order of this Court, all
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`persons receiving information designated CONFIDENTIAL under this Protective Order from an
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`opposing party in this action are expressly prohibited from using or disclosing such information in
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`connection with any practice before or communication with the United States Patent and
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`Trademark Office or the Patent Trial and Appeal Board, the FDA (including Citizen Petitions), the
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`United States Pharmacopoeia, or their counterpart organizations in any foreign jurisdiction, and
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`are expressly prohibited from using or disclosing such information in connection with any other
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`civil action.
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`5.4
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`Absent consent of the Producing Parties and/or further order of this Court, any
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`person who receives information designated CONFIDENTIAL INFORMATION under this
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`Protective Order from Defendants, in the case of an individual representing or affiliated with
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`Plaintiff in this action, or from Plaintiff in the case of an individual representing or affiliated with
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`a Defendant, shall not, thereafter during the course of this action and continuing for two years
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`6
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`following final termination of this action, work on or participate in directly or indirectly (i) the
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`drafting or editing of any patent application (foreign or domestic), claim, or claim amendment that
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`is directed to any product containing dexmedetomidine hydrochloride injection, including without
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`limitation the uses of any product containing dexmedetomidine hydrochloride or the method of
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`manufacturing any product containing dexmedetomidine hydrochloride; or (ii) the drafting or
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`editing of any correspondence or communication with FDA concerning any product containing
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`dexmedetomidine hydrochloride, including a Citizen Petition (or related submission, such as a
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`response to a Citizen Petition) further including without limitation the uses of any product
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`containing dexmedetomidine hydrochloride or the method of manufacturing any product
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`containing dexmedetomidine hydrochloride. For clarity, nothing in item (i) of this ¶ 5.4 shall
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`prevent an individual who receives CONFIDENTIAL INFORMATION from working on or
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`participating in directly or indirectly (a) inter partes reviews, post grant reviews, or re-issue or re-
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`examination proceedings at the U.S. Patent and Trademark Office or the Patent Trial and Appeal
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`Board related to dexmedetomidine hydrochloride, or (b) pre- or post-grant opposition proceedings
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`or invalidation request proceedings before a foreign patent office or court related to
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`dexmedetomidine hydrochloride, so long as the individual does not work on or participate directly
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`or indirectly in the drafting or editing of a claim or claim amendment as described in item (i) and
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`does not use CONFIDENTIAL INFORMATION received from an opposing party in this action
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`in connection with such proceedings. For further clarity, nothing in item (ii) of this ¶ 5.4 shall
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`prevent an individual who receives CONFIDENTIAL INFORMATION from working on or
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`participating directly or indirectly in (a) the drafting or editing of submissions to the FDA that are
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`not Citizen Petitions or related submissions, including but not limited to submissions related to the
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`listing of a patent in the Orange Book, or (b) a Citizen Petition (or related submission, including a
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`7
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`Case 1:18-cv-00303-RGA Document 33 Filed 05/31/18 Page 8 of 27 PageID #: 883
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`response to a Citizen Petition) concerning that individual’s company’s own dexmedetomidine
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`hydrochloride product—i.e., in the case of Hospira or Orion, a Citizen Petition involving
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`Precedex® itself (or a method of using Precedex® or manufacturing Precedex®), or in the case of
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`Baxter, a Citizen Petition involving Baxter’s own generic dexmedetomidine hydrochloride
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`products (or a method of using or manufacturing such generic dexmedetomidine hydrochloride
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`products)—so long as such individual does not use CONFIDENTIAL INFORMATION received
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`from an opposing party in this action in connection with such Citizen Petition (or related
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`submission).
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`5.5
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`It is understood that counsel for a party may give advice and opinions to his or her
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`client based on his or her evaluation of designated CONFIDENTIAL INFORMATION received
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`by the party, provided that such rendering of advice and opinions shall not reveal the content of
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`such information, other than in summary form, except by prior written agreement with counsel for
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`the Producing Party.
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`5.6
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`The attorneys of record for the parties and other persons receiving information
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`governed by this Protective Order shall exercise reasonable care to ensure that the information and
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`documents governed by this Protective Order are (a) used only for the purposes specified herein,
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`and (b) disclosed only to authorized persons.
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`5.7
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`The parties agree to meet and confer in good faith prior to trial to establish
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`procedures concerning the use of CONFIDENTIAL INFORMATION at trial. Nothing in this
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`Protective Order shall preclude any party from moving the Court to seal the courtroom, trial
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`exhibits, or the trial transcript in order to preserve the confidential nature of any CONFIDENTIAL
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`INFORMATION used at trial.
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`8
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`6.
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`Disclosure Of CONFIDENTIAL INFORMATION.
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`6.1
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`Every person to whom CONFIDENTIAL INFORMATION contained therein is to
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`be disclosed, summarized, described, characterized, or otherwise communicated or made available
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`in whole or in part, first shall be advised that the material or information is being disclosed pursuant
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`and subject to the terms of this Protective Order.
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`6.2
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`Except as provided in ¶¶ 11, 12, and 18, documents or information designated
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`CONFIDENTIAL INFORMATION, as described in this Protective Order, shall be disclosed by
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`the recipient thereof, on a need-to-know basis, only to:
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`(a)
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`Up to two (2) in-house personnel employed by Hospira, Inc., and up to two
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`(2) in-house personnel employed by Orion Corp., each of whom (i) is an attorney or counsel or, if
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`not an attorney or counsel, is regularly employed in the intellectual property or legal
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`department/division of said entity; (ii) is responsible for overseeing this litigation, and (iii) does
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`not currently have primary responsibility for patent prosecution
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`in connection with
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`dexmedetomidine hydrochloride injections. For clarity, while such an in-house person who does
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`not currently have primary responsibility for patent prosecution
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`in connection with
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`dexmedetomidine hydrochloride may be a designated person under ¶ 6.2 (a), such person may not,
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`commencing as of the date he or she receives information designated CONFIDENTIAL
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`INFORMATION under this Protective Order from an opposing party in this action, and continuing
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`for two years following final termination of this action, work on or participate in directly or
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`indirectly the drafting or editing of any claims or claim amendments in connection with such patent
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`prosecution. For further clarity, a designated in-house person may work on and participate in
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`directly or indirectly, and have primary responsibility for, (1) inter partes reviews, post grant
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`reviews, or re-issue or re-examination proceedings at the U.S. Patent Trademark Office or Patent
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`9
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`Trial and Appeal Board related to dexmedetomidine hydrochloride; or (2) pre- or post-grant
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`opposition proceedings or invalidation request proceedings before a foreign patent office or court
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`related to dexmedetomidine hydrochloride, provided that such designated person does not,
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`commencing as of the date he or she receives information designated CONFIDENTIAL
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`INFORMATION under this Protective Order from an opposing party in this action, and continuing
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`for two years following final termination of this action, work on or participate in directly or
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`indirectly the drafting or editing of any claims or claim amendments as part of any such
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`proceeding. Such designated individuals shall execute a copy of the Confidentiality Undertaking
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`attached hereto as Exhibit A, which shall in turn be provided to outside counsel for the other parties
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`in this action, and may disclose CONFIDENTIAL INFORMATION to their secretarial, paralegal,
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`clerical or legal assistant staff. In the event that one of the aforementioned in-house personnel
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`ceases to have responsibilities relating to this litigation, a party may designate another in-house
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`person who otherwise qualifies under the provisions of this ¶ 6.2 (a) to replace such person upon
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`giving written notice of such change to outside counsel for the other parties in this action and
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`providing an executed copy of the Confidentiality Undertaking;
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`(b)
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`Up to two (2) in-house personnel employed by Baxter Healthcare
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`Corporation, each of whom (i) is an attorney or counsel or, if not an attorney or counsel, is regularly
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`employed in the intellectual property or legal department/division of said entity, (ii) is responsible
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`for overseeing this litigation, and (iii) does not currently have primary responsibility for patent
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`prosecution in connection with dexmedetomidine hydrochloride injections. For clarity, while such
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`an in-house person who does not currently have primary responsibility for patent prosecution in
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`connection with dexmedetomidine hydrochloride may be a designated person under ¶ 6.2 (b), such
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`person may not, commencing as of the date he or she receives information designated
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`10
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`CONFIDENTIAL INFORMATION under this Protective Order from an opposing party in this
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`action, and continuing for two years following final termination of this action, work on or
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`participate in directly or indirectly the drafting or editing of any claims or claim amendments in
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`connection with such patent prosecution. For further clarity, a designated in-house person may
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`work on and participate in directly or indirectly, and have primary responsibility for, (1) inter
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`partes reviews, post grant reviews, or re-issue or re-examination proceedings at the U.S. Patent
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`and Trademark Office or Patent Trial and Appeal Board related to dexmedetomidine
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`hydrochloride; or (2) pre- or post-grant opposition proceedings or invalidation request proceedings
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`before a foreign patent office or court related to dexmedetomidine hydrochloride, provided that,
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`commencing as of the date he or she receives information designated CONFIDENTIAL
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`INFORMATION under this Protective Order from an opposing party in this action, and continuing
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`for two years following final termination of this action, such designated person does not work on
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`or participate in directly or indirectly the drafting or editing of any claims or claim amendments as
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`part of any such proceeding. Such designated individuals shall execute a copy of the
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`Confidentiality Undertaking attached hereto as Exhibit A, which shall in turn be provided to
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`outside counsel for the other parties in this action, and may disclose CONFIDENTIAL
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`INFORMATION to their secretarial, paralegal, clerical or legal assistant staff. In the event that
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`one of the aforementioned in-house personnel ceases to have responsibilities relating to this
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`litigation, a party may designate another in-house person who otherwise qualifies under the
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`provisions of this ¶ 6.2 (b) to replace such person upon giving written notice of such change to
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`outside counsel for the other parties in this action and providing an executed copy of the
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`Confidentiality Undertaking;
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`11
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`(c)
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`Outside trial counsel or outside attorneys of record for the parties, including,
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`but not limited to, such attorneys’ partners, associates, staff and contract attorneys, and their
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`authorized secretarial, paralegal, clerical and legal assistant staff whose duties and responsibilities
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`require access to material designated CONFIDENTIAL INFORMATION;
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`(d)
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`The Court and Court personnel;
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`(e) Witnesses or potential witnesses in this action and their counsel, to the
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`extent that the witness at such proceeding is qualified under the terms of this Protective Order to
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`have access to such designated material;
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`(f)
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`Outside consultants or experts and their staffs retained by the parties or their
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`attorneys for purposes of this action, who are not objected to pursuant to ¶ 7, and who first agree
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`to be bound by the terms of this Protective Order by executing a copy of the Undertaking attached
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`hereto as Exhibit A;
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`(g)
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`Court reporters, videographers, and their respective staffs employed in
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`connection with this action;
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`(h)
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`Non-parties specifically retained to assist outside counsel of record with
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`copying and computer services necessary for document handling, and other litigation support
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`personnel (e.g., graphic designers and animators, database entry personnel); and
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`(i)
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`Any interpreter or translation service retained to assist outside counsel of
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`record, and any typist or transcriber used thereby, who either first executes a copy of the
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`Confidentiality Undertaking attached hereto as Exhibit A or has made suitable arrangements with
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`the party that has retained such an individual to preserve the confidentiality of the
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`CONFIDENTIAL INFORMATION.
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`12
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`7.
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`Identification Of Experts And Consultants.
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`7.1
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`If any party desires to disclose information designated CONFIDENTIAL to any
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`expert or consultant pursuant to ¶ 6(f) above, it must first identify in writing (which can be by
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`email or facsimile) to the attorneys for the Producing Party each such expert or consultant.
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`7.2
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`The attorneys for the Producing Party shall have seven (7) business days from
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`receipt of such notice to object in writing to disclosure of such information to any of the experts
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`or consultants so identified. Any party that fails to object in writing within seven (7) business days
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`of receiving such notice shall be deemed to have waived such objection and the parties shall be
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`deemed to have agreed upon disclosure to the expert for purposes of ¶ 6.2 (f). No
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`CONFIDENTIAL INFORMATION may be disclosed to any proposed expert or consultant until
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`such time as the parties are deemed to have agreed upon disclosure to the expert for purposes of ¶
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`6.2 (f) pursuant to the provisions of ¶ 7.
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`7.3
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`The identification of an expert or consultant pursuant to ¶ 7.1 shall include the full
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`name and professional address and/or affiliation of the proposed expert or consultant, an up-to-
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`date curriculum vitae, any prior or current employments or consultancies for any party or other
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`company in the pharmaceutical industry within the last five (5) years,1 including a list of the cases
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`in which the expert or consultant has testified at deposition, at a hearing, or at trial within the last
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`four years, and an executed copy of the Confidentiality Undertaking attached hereto as Exhibit A.
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`1 In the event that the expert or consultant is not able to provide the identity of a party or other
`company within the pharmaceutical industry due to confidentiality restrictions (such as a
`contractual requirement to maintain in confidence the identity of the party or other company within
`the pharmaceutical
`industry),
`the
`expert or
`consultant
`shall
`list
`“Confidential
`Consultancy/Employment” and the product name on his or her curriculum vitae. The parties shall
`thereafter meet and confer concerning such disclosure, and if they are unable to resolve any
`objections concerning the disclosure, shall proceed in accordance with the provisions of Section
`7.4.
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`13
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`7.4
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`The parties shall attempt to resolve any objections informally. Within five (5)
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`business days of receipt of an objection, the parties shall meet and confer to attempt to resolve
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`their dispute. If the objections cannot be resolved, the party opposing disclosure of the
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`CONFIDENTIAL INFORMATION to the expert or consultant may raise the issue with the Court
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`in accordance with the Court’s Scheduling Order for resolution of discovery disputes. If the issue
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`is raised with the Court, the party opposing disclosure shall bear the burden of proof with respect
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`to the propriety of its objection and blocking of said individual from serving as an expert or
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`consultant in this case. After meeting and conferring in an attempt to resolve the issue, any party
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`that fails to raise such an issue with the Court within ten (10) business days of notifying a party of
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`an objection to disclosure under ¶¶ 7.1 and 7.2 shall be deemed to have waived such objection and
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`the parties shall be deemed to have agreed upon disclosure to the expert for purposes of ¶ 6.2 (f).
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`8.
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`Agreement Of Confidentiality.
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`8.1
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`In no event shall any information designated CONFIDENTIAL be disclosed to any
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`person authorized pursuant to ¶ 6.2(f) until such person has executed a written Confidentiality
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`Undertaking (in the form set forth in Exhibit A hereto) acknowledging and agreeing to be bound
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`by the terms of this Protective Order. Counsel for the party seeking to disclose material designated
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`under this Order to any such person pursuant to this paragraph shall be responsible for retaining
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`the executed originals of all such Confidentiality Undertakings.
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`8.2
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`Any vendor described in ¶ 6(h) that is accessing hard copies of CONFIDENTIAL
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`on behalf of a party shall return to the party’s counsel all hard copies of such documents as soon
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`as the information has been encoded and loaded into the computer, copied, prepared or otherwise
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`processed by the vendor.
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`Case 1:18-cv-00303-RGA Document 33 Filed 05/31/18 Page 15 of 27 PageID #: 890
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`9.
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`Related Documents.
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`9.1
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`The restrictions contained herein
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`to
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`the use of
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`information designated
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`CONFIDENTIAL INFORMATION shall apply to (a) portions of documents, copies, extracts, and
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`complete or partial summaries prepared from or containing such information; (b) portions of
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`deposition transcripts and exhibits thereto which contain or reflect the content of any such
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`documents, copies, extracts, or summaries; (c) subject to the provisions of ¶ 13, portions of briefs,
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`memoranda or any other papers filed with the Court and exhibits thereto or expert reports which
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`contain or reflect the content of any such documents, copies, extracts, or summaries; (d) deposition
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`testimony designated in accordance with ¶ 10; and/or (e) testimony taken at a hearing or other
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`proceeding and designated in accordance with ¶ 21.
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`10.
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`Designation Of Deposition Transcripts.
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`10.1 Portions of deposition transcripts containing CONFIDENTIAL INFORMATION
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`may be designated as subject to this Protective Order either on the record during the deposition or
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`by providing written notice within thirty-five (35) days following receipt of the official transcript
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`of the deposition to the reporter and all counsel of record of the specific pages and lines that contain
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`CONFIDENTIAL INFORMATION, in which case all counsel receiving such notice shall mark
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`the copies or portions of the designated transcript in their possession or under their control as
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`directed by the designating party.
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`10.2 All deposition transcripts not previously designated shall be deemed to be, and shall
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`be treated as CONFIDENTIAL for a period of thirty-five (35) days after receipt of the official
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`transcript of the deposition, and the transcript shall not be disclosed during such time to persons
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`other than those persons qualified to receive such information pursuant to this Protective Order.
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`15
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`Case 1:18-cv-00303-RGA Document 33 Filed 05/31/18 Page 16 of 27 PageID #: 891
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`10.3 The Producing Party shall have the right to exclude from portions of a deposition,
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`before the taking of testimony which the Producing Party designates CONFIDENTIAL and subject
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`to this Protective Order, all persons other than those persons previously qualified to receive such
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`information pursuant to this Protective Order.
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`11.
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`Disclosure to Other Individuals.
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`Notwithstanding any other provision of this Protective Order, CONFIDENTIAL
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`INFORMATION may be disclosed to the following persons, irrespective of whether they are
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`identified in ¶ 6, as follows:
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`11.1 CONFIDENTIAL INFORMATION may be disclosed to persons not identified in
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`¶ 6 as agreed by the producing parties by written consent.
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`11.2 Any receiving party may move the Court (in accordance with the Court’s
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`procedures for resolution of discovery disputes) for an Order that a person not identified in ¶ 6 be
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`given access to information designated CONFIDENTIAL. If the motion is granted, such person
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`may have access to the CONFIDENTIAL INFORMATION after first signing the Confidentiality
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`Undertaking set forth in Exhibit A.
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`11.3 Nothing in this Protective Order shall prohibit counsel or a party from disclosing a
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`document containing information designated CONFIDENTIAL at deposition, at trial, or at any
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`other court hearing, to: (i) any person who appears from the face of the document to have drafted,
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`prepar