Case 1:19-cv-00638-CFC Document 27 Filed 07/22/19 Page 1 of 31 PageID #: 1631
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GENENTECH, INC. and CITY OF HOPE,
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`Plaintiffs and Counterclaim
`Defendants,
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`V.
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`PFIZER INC.
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`Defendant and Counterclaim
`Plaintiff
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`___________ )
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`C.A. No. l:19-cv-00638-CFC
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`PFIZER INC.
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`Counterclaim Plaintiff,
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`v.
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`HOFFMAN-LA ROCHE, INC.,
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`Counterclaim Defendant.
`- - - - - - - - - - - - - - - - - )
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`STIPULATED PROTECTIVE ORDER
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`WHEREAS, Plaintiffs Genentech, Inc. and City of Hope, Defendant Pfizer Inc., and
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`Counterclaim Defendant Hoffman La-Roche (collectively the "Parties") expect discovery
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`requests made in this Litigation to encompass certain information which may constitute trade
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`secrets and/or other confidential research, development, or commercial information within the
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`meaning of Federal Rule of Civil Procedure 26(c)(l)(G) for which special protection from public
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`disclosure and from use for any purpose other than in this Litigation is warranted, the Parties, by
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`and through their respective Outside Counsel, HEREBY STIPULATE to the entry of this
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`ME I 30989659v. I
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`Case 1:19-cv-00638-CFC Document 27 Filed 07/22/19 Page 2 of 31 PageID #: 1632
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`Protective Order regarding discovery in District of Delaware Civil Litigation No. 19-638,
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`including any appeals therefrom (herein "Litigation").
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`DEFINITIONS
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`I.
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`"Affiliate" means any Third Party that directly or indirectly through one or more
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`intermediaries, controls, or is controlled by, or is under common control with, a Party to this
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`Litigation.
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`2.
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`"CONFIDENTIAL" means information that constitutes, contains, reveals, or
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`reflects trade secrets or other confidential research, development, business, or commercial
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`information within the meaning of Fed. R. Civ. P. 26(c)(l)(G), including but not limited to:
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`scientific and technical information; product information; financial, budgeting and/or accounting
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`information; information about existing and potential customers; marketing and other business
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`strategies, decisions, or negotiations; personnel compensation, evaluations, and other
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`employment information; information received from a Third Party pursuant to a confidentiality,
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`non-disclosure or similar agreement; and includes such confidential and proprietary information
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`about a Third Party, including parents, subsidiaries, and/or other Affiliates. Provisions of this
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`Protective Order relating to CONFIDENTIAL information shall be understood to encompass any
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`information derived
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`from, as well as
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`testimony and oral conversation related
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`to,
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`CONFIDENTIAL information, and all copies, excerpts, and summaries thereof.
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`3.
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`"CONFIDENTIAL Discovery Material" means Discovery Material a Producing
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`Party designates as CONFIDENTIAL pursuant to the terms of this Protective Order, as well as
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`information provided by a Party pursuant to 42 U.S.C. § 262(/)(l){B)(i) and 42 U.S.C.
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`§ 262(/)(2), 42 U.S.C. § 262(/)(3) and 42 U.S.C. § 262(/)(7).
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`4.
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`"Designated Inside Counsel" means an Inside Counsel who is designated during
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`this Litigation pursuant to Paragraph 29(b) of this Protective Order.
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`5.
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`"Discovery Material" means all documents, testimony, pleadings, exhibits, and all
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`other material or information produced or disclosed in this Litigation, including responses to
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`requests for production of documents and/or things, answers to interrogatories, responses to
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`requests for admissions, documents and things made available for inspection, deposition
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`testimony, expert testimony and reports, and all other discovery taken pursuant to the Federal
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`Rules of Civil Procedure, including Third Party discovery pursuant to Rule 45, matters in
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`evidence and any other information hereafter furnished, directly or indirectly, by or on behalf of
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`any Party, Third Party, or witness in connection with this Litigation. This Protective Order and
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`protections herein shall apply to all Discovery Material.
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`6.
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`"Expert" means a person with specialized knowledge or experience in a matter
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`pertinent to this Litigation who has been retained by a Party or its Inside or Outside Counsel to
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`serve as an expert witness or as a consultant in this Litigation who, at the time of retention, is not
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`an officer, director, or employee of a Party or an Affiliate and is not anticipated to become an
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`officer, director, or employee of a Party or an Affiliate. Nothing in this Protective Order
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`purports to alter in any way the requirements for offering testimony under Fed. R. Evid. 703, or
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`to define the term "expert" for purposes other than those addressed in this Protective Order.
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`7.
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`"Inside Counsel" means any attorney who works in the legal department of a
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`Party.
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`8.
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`"Outside Counsel" means any attorney from a law firm that has at least one
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`attorney who is then a current counsel of record for a Party in this Litigation and which Outside
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`Counsel is not an employee of a Party or of an Affiliate.
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`9.
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`"Party" means a party to this Litigation.
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`ME I 30989659v. l
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`10.
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`"Patent Office Proceeding" means any proceeding to obtain a patent or to defend
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`the validity or enforceability of a patent or patent application, including without limitation
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`prosecution, reexamination, reissue, post-grant review ("PGR"), inter partes review ("IPR"),
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`inter partes reexaminations, covered business method review proceedings ("CBM"), interference
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`or any analogous foreign patent proceeding.
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`11.
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`"Producing Party" means any Party or any Third Party who produces or otherwise
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`discloses, whether through formal or informal means, Discovery Material in this Litigation.
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`12.
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`"Professional Vendor(s)" means persons or entities that provide litigation support
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`services (e.g., photocopying, audio or video recording, translating, preparing exhibits or
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`demonstrations, and organizing, storing, or retrieving data in any form or medium; jury
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`consulting, mock trial coordination, courtroom presentation) and their employees and
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`subcontractors.
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`13.
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`"Prosecution" means participation in or direct contribution to drafting, amending,
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`modifying, or advising regarding the drafting, amending, or scope of patent claims during
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`prosecution proceedings in the United States or in any foreign country. For avoidance of doubt,
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`(I) Outside Counsel or Designated Inside Counsel who receive CONFIDENTIAL Discovery
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`Material and who participate in Patent Office Proceedings but do not participate in or advise on
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`proposing, drafting, or amending claims; and (2) Outside Counsel who do not receive
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`CONFIDENTIAL Discovery Material shall not be deemed to be engaged in Prosecution and are
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`not subject to the restrictions regarding Prosecution Bar Patents and Applications set forth
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`herein.
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`14.
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`"Prosecution Bar Patent or Application" means any patent or application (a) to
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`which any of the patents-in-suit assert priority, or which asserts priority to any of the patents-in-
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`MEI 30989659v.1
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`suit, or which asserts priority to an application or patent to which any of the patents-in-suit assert
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`priority; (b) is a foreign counterpart of any patent or application defined in (a); (c) that concerns
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`in whole or in part bevacizumab, trastuzumab, or rituximab, including without limitation
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`developing, making, purifying, manufacturing, formulating, using or administering any product,
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`formulation or composition that contains bevacizumab, trastuzumab, or rituximab, including
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`without limitation methods of treating any disease or medical condition; or ( d) that concerns in
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`whole or in part subject matter related to the patents identified on Genentech's list under 42
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`U.S.C. § 262(/)(3){A), including without limitation as supplemented pursuant to 42 U.S.C.
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`§ 262( /)(7).
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`15.
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`16.
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`"Protective Order" means this Stipulated Protective Order.
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`"Receiving Party'' means any Party that receives information produced or
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`otherwise disclosed by any Producing Party.
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`17.
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`"Related Litigation" means any additional U.S.
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`litigation or adversarial
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`proceeding (including without limitation any Patent Office Proceeding), including any appeals,
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`between any of the Parties that involves the infringement, validity or enforceability of the
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`patents-in-suit or a Prosecution Bar Patent or Application.
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`18.
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`"Third Party'' means a person or entity that is not a Party.
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`DESIGNATION
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`19.
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`Any Producing Party may designate Discovery Material as CONFIDENTIAL in
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`accordance with this Protective Order if such Party in good faith believes that such Discovery
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`Material contains CONFIDENTIAL information as defined in Paragraph 2.
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`20.
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`Discovery Material may, as appropriate, be marked by the Producing Party with
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`the legend "CONFIDENTIAL" in conjunction with the identity of the Producing Party, or
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`another suitable legend, and the Producing Party must use reasonable efforts to ensure that such
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`legend appears on each page of each document or file as the format permits. In the case of
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`computer media, the designation shall be placed on the medium and its label and/or cover. In the
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`case of files produced in native format, the designation shall be included in the accompanying
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`metadata and/or in the file's name.
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`21.
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`Information revealed by inspection of things and premises under Fed. R. Civ. P.
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`34, shall be treated as though it were designated CONFIDENTIAL provided that prior to, or at
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`any time up to, thirty days (as calculated by Fed. R. Civ. P. 6) after the inspection, the Party
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`permitting inspection specifically identifies in writing which of the Discovery Material that will
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`be or that was disclosed by the inspection is to be designated as CONFIDENTIAL. There will
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`be no waiver of confidentiality, or any privilege or immunity, by the inspection of Discovery
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`Material before it is copied and marked pursuant to this Order. Inspection of Discovery Material
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`by any Party shall be conducted by persons eligible under Paragraph 29.
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`22.
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`Documents and things produced or made available for inspection may be subject
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`to redaction, in good faith by the Producing Party, of information that is (a) subject to the
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`attorney-client privilege, to work-product immunity, or any other applicable privilege or
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`immunity; (b) protected data, including (i) individually identifiable health information, (ii)
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`information from any jurisdiction outside that United States that pertains to a specific individual
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`that can be linked to that individual and that reveals race, ethnic origin, sexual orientation,
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`political opinions, religious or philosophical beliefs, trade union or political party membership or
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`that concerns an individual's health, and (iii) sensitive proprietary information concerning
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`antibodies or small molecules not relevant to the issues in this litigation, that the Producing Party
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`claims requires protections under the terms of this Order; or ( c) information in a license
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`agreement or settlement agreement concerning U.S. Patent Nos. 6,331,415 or 7,923,221 that
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`would tend to identify the counterparty to such agreement. Each such redaction, regardless of
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`size, shall be clearly labeled "Redacted- Privileged," "Redacted- Protected Data," or "Redacted
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`- Settlement Agreement" as appropriate. This Paragraph shall not be construed as a waiver of
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`any Party's right to seek disclosure of redacted information.
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`23.
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`Information of a Producing Party revealed during a deposition upon oral or
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`written examination under Fed. R. Civ. P. 30 shall be treated as CONFIDENTIAL by a
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`Receiving Party for thirty days (as calculated by Fed. R. Civ. P. 6) following receipt of the final
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`transcript by Outside Counsel for the Producing Party, but not thereafter unless, before the thirty
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`day period has expired, Outside Counsel or Inside Counsel for the Producing Party notifies
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`Outside Counsel or Designated Inside Counsel for the Receiving Party in writing that the
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`Discovery Material set forth in the transcript is CONFIDENTIAL. Counsel for any Party or
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`Third Party also may designate the transcript or portions thereof to be CONFIDENTIAL
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`Discovery Material during the deposition. The appropriate legend described in Paragraph 20
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`shall be placed on the front of any deposition transcript (and, if recorded, any copies of the
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`recording) containing CONFIDENTIAL Discovery Material.
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`24.
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`Any court filing
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`that contains, describes, or discusses CONFIDENTIAL
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`Discovery Material shall be filed under seal pursuant to the requirements of District of Delaware
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`Local Rule 5.1.3, the Court's CM/ECF Procedures, and any other applicable rules or procedures.
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`The filing Party must include on the cover page of the brief or other filing a descriptive legend in
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`the following format: "CONTAINS PLAINTIFFS' CONFIDENTIAL INFORMATION" or
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`"CONTAINS DEFENDANT'S CONFIDENTIAL
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`INFORMATION" or
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`"CONTAINS
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`PLAINTIFFS' AND DEFENDANT'S CONFIDENTIAL INFORMATION" or "CONTAINS
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`THIRD-PARTY CONFIDENTIAL INFORMATION" or another suitable legend. The sealed
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`ME I 30989659v.1
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`material shall not be opened or released from the custody of the Clerk of Court except by order
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`of the Court. Outside Counsel for the Party filing papers containing, describing, or discussing
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`CONFIDENTIAL Discovery Material shall be responsible for providing appropriately redacted
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`copies of the filed document to the Court in accordance with any local rules or procedures. If the
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`filing contains the CONFIDENTIAL Discovery Material of the Party who did not file the
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`document, within five days (5) from the date of a filing made under seal, Outside Counsel for the
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`non-filing Party or non-filing Third Party shall deliver to Outside Counsel for the filing Party or
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`Third Party a proposed public version of the filing that was made under seal if it contains the
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`non-filing Party's CONFIDENTIAL Discovery Material, and this proposed public version shall
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`include redactions of CONFIDENTIAL Discovery Material. Within two (2) days after receipt of
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`the proposed public version, Outside Counsel for the filing Party shall provide any additional
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`redactions it believes appropriate. Redacted versions of papers filed under seal may be made
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`publicly available provided that (a) all CONFIDENTIAL Discovery Material is redacted; and (b)
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`such redacted versions are clearly marked "Public Version," and clearly identify each place
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`where information or exhibits have been redacted or deleted. A Party shall not disclose another
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`Party's CONFIDENTIAL Discovery Material in a public hearing or at trial absent either (a)
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`advance notice to the other Party to enable the Party to seek appropriate relief from the Court in
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`the form of an order sealing the courtroom or otherwise; or (b) an order of the Court.
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`25.
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`CONFIDENTIAL Discovery Material produced by a Party or Third Party may be
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`used by a Receiving Party only for purposes of this Litigation. CONFIDENTIAL Discovery
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`Material shall not be used for any other purpose including, but not limited to, any other lawsuit;
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`Patent Office Proceeding; any dispute resolution proceeding unrelated to this Litigation; any
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`petitioning, counseling, or litigation or other work involving the Food and Drug Administration
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`("FDA"), including any Citizens' Petition; or for any other business, proprietary, commercial,
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`governmental, or regulatory purpose, domestic or foreign. Nothing in this Protective Order
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`precludes a Producing Party from using or disseminating its own Discovery Material, including
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`CONFIDENTIAL Discovery Material, for purposes other than this Litigation. Any recipient of
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`CONFIDENTIAL Discovery Material shall be subject to the specific limitations applying to that
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`recipient on the disclosure of that CONFIDENTIAL Discovery Material as provided in this
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`Protective Order.
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`26.
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`During the deposition or trial testimony of any fact witness, such witness may be
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`shown, testify concerning, or be examined concerning CONFIDENTIAL Discovery Material
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`only if:
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`(a)
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`(b)
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`the witness is a current employee of the Producing Party;
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`the witness authored the CONFIDENTIAL Discovery Material or the
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`witness received the CONFIDENTIAL Discovery Material in the ordinary course of business
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`and outside the context of this Litigation; or
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`(c)
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`the witness is a former director, officer, agent and/or employee of a
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`Producing Party and the examining Party reasonably believes the witness had access to the
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`CONFIDENTIAL Discovery Material in the course of his or her employment.
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`27.
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`At the deposition of any corporate representative designated pursuant to Fed. R.
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`Civ. P. 30(b)(6) to testify on behalf of a Party on a particular topic or subject area, such witness
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`may be shown CONFIDENTIAL Discovery Material that is within that particular topic or
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`subject area if the Producing Party is the party being deposed pursuant to Fed. R. Civ. P.
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`30(b)(6).
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`28.
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`Third Parties may designate as CONFIDENTIAL deposition transcripts of their
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`witnesses and any Discovery Material they produce, whether voluntarily or by subpoena, to the
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`same extent and in the same manner as Parties and any such CONFIDENTIAL Discovery
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`Material shall be treated by the Parties in the same manner as the CONFIDENTIAL Discovery
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`Material produced by a Party. Third Parties shall have the same rights and obligations under this
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`Protective Order as Parties and may move the Court to enforce the provisions of this Protective
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`Order.
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`DISCLOSURE OF CONFIDENTIAL DISCOVERY MATERIAL
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`29.
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`Unless otherwise directed by the Court or authorized in writing by the Producing
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`Party, CONFIDENTIAL Discovery Material may be disclosed by a Receiving Party only to the
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`following persons:
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`(a)
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`Outside Counsel for Genentech, Inc., City of Hope, or Hoffinan-La Roche
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`in the above-captioned case:
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`i.
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`ii.
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`111.
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`Mccarter & English LLP
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`Covington & Burling LLP
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`Durie Tangri LLP
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`Outside Counsel for Pfizer Inc. in the above-captioned case:
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`i.
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`11.
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`Heyman Enerio Gattuso & Hirzel LLP
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`Willkie Farr & Gallagher LLP
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`provided such Outside Counsel has no current responsibility or involvement and will not have
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`any responsibility or involvement for the duration of this Litigation for or in (a) the Prosecution
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`of any Prosecution Bar Patent or Application or (b) participating in or advising on proposing,
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`drafting, or amending claims of any Prosecution Bar Patent or Application in any Patent Office
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`Proceedings. The restriction described in this Paragraph shall apply only to individuals who
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`received CONFIDENTIAL information and only begin when access to CONFIDENTIAL
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`information is first received by the affected individual and shall end one year after final
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`termination of this Litigation.
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`(b)
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`Up to three Designated Inside Counsel for Plaintiffs collectively, and up to
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`three Designated Inside Counsel for Defendant, who, because of their duties and responsibilities,
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`require access to CONFIDENTIAL Discovery Materia~ provided such Designated Inside
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`Counsel have no current involvement and will not have involvement for the duration of this
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`Litigation in (a) the Prosecution of any Prosecution Bar Patent or Application or (b) participating
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`in or advising on proposing, drafting, or amending claims of any Prosecution Bar Patent in any
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`Patent Office Proceedings. A Designated Inside Counsel's role as supervisor of an attorney or
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`patent agent engaged in Prosecution described herein shall not, in itself constitute evidence that
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`the Designated Inside Counsel is engaged in Prosecution or participating in or advising on
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`proposing, drafting, or amending claims of any Prosecution Bar Patent in any Patent Office
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`Proceedings.
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`The restriction described in this Paragraph shall begin when access to
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`CONFIDENTIAL information is first received by the affected individual and shall end the
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`earlier of (i) one year after final termination of this Litigation or (ii) one year after a Designated
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`Inside Counsel withdraws from representing a Party in this Litigation and the Party that the
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`Designated Inside Counsel represents removes him or her from its list of Designated Inside
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`Counsel.
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`(c)
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`Support personnel for attorneys listed in Paragraphs 29(a) and (b), such as
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`law clerks, paralegals, secretaries, IT personnel, and clerical staff, assisting with this Litigation
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`under the supervision of an attorney described in Paragraph 29(a) and (b).
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`( d)
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`Analysts and scientific advisors regularly employed by Outside Counsel
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`so long as they are subject to the same restrictions set forth in Paragraph 29(a).
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`(e)
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`Contract attorneys retained by a Party's Outside Counsel or Designated
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`Inside Counsel for the sole purpose of assisting with document review in this Litigation so long
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`as they are subject to the same restrictions set forth in Paragraph 29(a).
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`( f)
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`Any Expert who is expressly retained by any Outside Counsel or
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`Designated Inside Counsel to assist in this Litigation, including any associates or analysts
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`working under the supervision of the Expert, with disclosure only to the extent necessary to
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`perform such work.
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`(g)
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`Support personnel for Experts listed in Paragraph 29(f), such as secretaries
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`and clerical staff, assisting with this Litigation under the supervision of an Expert described in
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`Paragraph 29(f).
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`(h)
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`Any interpreter, court reporter, or other shorthand reporter or typist who is
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`not employed by a Party and who is translating, recording, or transcribing documents or
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`testimony in connection with this Litigation, and any videographer who is not employed by a
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`Party and who is recording a deposition in connection with this Litigation.
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`(i)
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`(j)
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`(k)
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`Professional Vendors, as defined in Paragraph 12.
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`Personnel of the Court and all appropriate courts of appellate jurisdiction.
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`Any other person requested by a Receiving Party and agreed to by the
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`Producing Party in writing pursuant to Paragraph 31.
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`30.
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`CONFIDENTIAL Discovery Material shall not be disclosed to persons described
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`in Paragraphs 29(d), (f), or (k), or jury consultants under (i), unless and until such person has
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`executed an acknowledgement in the form attached as Exhibit A. Either Outside Counsel or
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`Designated Inside Counsel must maintain a copy of the executed Exhibit A for each individual
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`falling under Paragraphs 29(d), (t), or (k), and each jury consultant under (i), during the
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`Litigation and for a period of one year thereafter.
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`31.
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`During the pendency of this Litigation, a Party that seeks
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`to disclose
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`CONFIDENTIAL Discovery Material to an individual described in Paragraph 29(t), or (k) must
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`first provide notice to the Producing Party by service of a Notice on the other Party identifying
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`such individual by name and including a curriculum vitae ("CV") or equivalent resume
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`disclosing the individual's employment history, past or present relationship with any of the
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`Parties and Affiliates, all cases in which the individual has testified in a deposition or a trial in
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`the past four years, and an executed acknowledgement in the form of Exhibit A attached hereto.
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`A Party that provides such Notice to the Producing Party may disclose CONFIDENTIAL
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`Discovery Material to the individual unless, within seven days of delivering the notice (as
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`calculated by Fed. R. Civ. P. 6), the Party receives written objection from the objecting Party.
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`Any such objection must be made for good cause and must set forth in detail the grounds on
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`which such objection is based. A Party that receives a timely written objection must meet and
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`confer with the objecting Party to try to resolve the matter by agreement. If the Parties are
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`unable to reach agreement regarding such objection, the objecting Party must apply to the Court
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`for a protective order no later than ten days (as calculated by Fed. R. Civ. P. 6) after receipt of
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`the executed acknowledgement in the form attached as Exhibit A and the CV or resume. The
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`burden shall be on the objecting Party to demonstrate to the Court why such individual should
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`not be permitted to receive CONFIDENTIAL Discovery Material under the Protective Order.
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`CONFIDENTIAL Discovery Material shall not be disclosed to such individual pending the
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`Case 1:19-cv-00638-CFC Document 27 Filed 07/22/19 Page 14 of 31 PageID #: 1644
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`Court's resolution of the dispute. The foregoing seven-day and ten-day periods may be extended
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`or shortened by agreement of the Parties or by Order of the Court.
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`32.
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`CONFIDENTIAL Discovery Material shall not be disclosed to persons described
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`in Paragraph 29(b) unless and until such person has executed an acknowledgement in the form
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`attached as Exhibit B. Either Outside Counsel or Designated Inside Counsel must maintain a
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`copy of the executed Exhibit B for each individual falling under Paragraph 29(b) during the
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`Litigation and for a period of one year thereafter. During the pendency of this Litigation, a Party
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`that seeks to designate a Designated Inside Counsei or designate a replacement Designated
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`Inside Counsel with a new designee ( as provided herein), must first provide notice to the other
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`Party by service of the acknowledgement in the form attached as Exhibit B completed and signed
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`by the proposed Designated Inside Counsel. A Party that designates a Designated Inside
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`Counsel or replaces a Designated Inside Counsel and provides the information specified in the
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`preceding sentence may disclose CONFIDENTIAL information to the newly identified
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`Designated Inside Counsel unless, within five days of delivering the notice (as calculated by Fed.
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`R. Civ. P. 6), the Party receives a written objection from the objecting Party. Any such objection
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`must set forth in detail the grounds on which such objection is based. A Party that receives a
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`timely written objection must meet and confer with the objecting Party to try to resolve the
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`matter by agreement. If the Parties are unable to reach agreement regarding such designation,
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`the objecting Party must apply to the Court for a protective order no later than ten days (as
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`calculated by Fed. R. Civ. P. 6) after receipt of the executed acknowledgement in the form
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`attached as Exhibit B. CONFIDENTIAL Discovery Material shall not be disclosed to such
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`Designated Inside Counsel or replacement Designated Inside Counsel pending the Court's
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`MEI 30989659v.l
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`resolution of the dispute. The foregoing five-day and ten-day periods may be extended or
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`shortened by agreement of the Parties or by Order of the Court.
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`33.
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`The recipient of any CONFIDENTIAL Discovery Material that is provided under
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`this Protective Order (including any copies or excerpts made thereof) shall maintain such
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`information ( including any summaries, analyses, or other derivative materials disclosing or
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`reflecting the content of that information) in a secure and safe area and shall exercise reasonable
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`and proper care with respect to the storage, custody, use, and/or dissemination of such
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`information. The recipient of CONFIDENTIAL Discovery Material in electronic form shall
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`maintain such CONFIDENTIAL Discovery Material (including any summaries, analyses, or
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`other derivative materials disclosing or reflecting the content of that material) on a secure,
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`password-protected computer, drive, or server such that access to CONFIDENTIAL Discovery
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`Material is restricted only to persons authorized under Paragraph 29.
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`EXEMPTED MATERIALS AND OBJECTION TO DESIGNATIONS
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`34.
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`Any Receiving Party may object to the designation by the Producing Party of any
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`Discovery Material as CONFIDENTIAL at any time for any reason including but not limited to
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`that the Discovery Material is improperly designated as Confidential under Paragraph 36. The
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`process for making an objection to the designation of Discovery Material as CONFIDENTIAL
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`and for resolving the dispute shall be as follows:
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`(a)
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`Outside Counsel or Designated Inside Counsel for a Receiving Party shall
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`notify Outside Counsel for the Producing Party in writing as to its objection(s) to the
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`designations. This notice shall include, at a minimum, a specific identification of the designated
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`CONFIDENTIAL Discovery Material as well as the reasons for the objection.
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`MEI 30989659v.l
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`Case 1:19-cv-00638-CFC Document 27 Filed 07/22/19 Page 16 of 31 PageID #: 1646
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`(b) Within 14 days of such notice, Outside Counsel or Designated Inside
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`Counsel for the Parties shall confer either in person or by telephone in a good-faith effort to
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`resolve the dispute.
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`( c)
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`If agreement is not reached, a Receiving Party may apply to the Court for
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`a ruling that the Discovery Material sought to be protected is not entitled to such designation
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`within 21 days of such notice. The Receiving Party bears the burden to establish that the
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`Discovery Material is not CONFIDENTIAL as defined in Paragraphs 2 and 3 and not entitled to
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`such protection under this Protective Order. Absent agreement by the Parties, the Receiving
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`Party's failure to contact the court within 21 days of the notice described in this section waives
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`the Receiving Party's objections.
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`35.
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`The right to challenge and the process for challenging the existence or designation
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`of redactions shall be the same as the right to challenge and the process for challenging the
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`designation of CONFIDENTIAL Discovery Material as set forth in Paragraph 36.
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`36.
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`Discovery Material is not properly designated as CONFIDENTIAL under
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`Paragraph 2 if it has/had been:
`
`(a)
`
`(b)
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`available to the public at the time of its production hereunder;
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`available to the public after the time of its production through no act, or
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`failure to act, on behalf of a Receiving Party, its counsel, representatives, or experts;
`
`( c)
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`known to a Receiving Party, or shown to have been independently
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`developed by a Receiving Party, before its production herein without the use or benefit of
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`Discovery Material;
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`(d)
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`obtained outside of this Litigation by a Receiving Party from the
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`Producing Party without having been designated as CONFIDENTIAL; provided, however, that
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`ME 1 30989659v. I
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`Case 1:19-cv-00638-CFC Document 27 Filed 07/22/19 Page 17 of 31 PageID #: 1647
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`this provision does not negate a protective order in another action or any other pre-existing
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`obligation of confidentiality;
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`(e)
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`previously produced, disclosed, and/or provided by the Producing Party to
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`a Receiving Party or any Third Party without an obligation of confidentiality; or
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`( t)
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`obtained by a Receiving Party from a Third Party provided the production
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`by the Third Party did not violate this Protective Order or a protective order in another action.
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`37.
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`Notwithstanding any challenge to the designation of Discovery Material as
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`CONFIDENTIAL, including according to the provisions of Paragraphs 36(a)-36(t), all such
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`material so designated shall be treated as such and shall be subject to the provisions of this
`
`Protective Order until one of the following occurs: (a) the Party that designated the material as
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`CONFIDENTIAL withdraws such designation in writing, or (b) the Court rules that the
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`designation is not proper.
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`NO W AIYER OF PRIVILEGE
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`38.
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`Pursuant t