Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 1 of 29 PageID #: 3468
`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 1 of 29 PagelD #: 3468
`
`EXHIBIT 1
`EXHIBIT1
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 2 of 29 PageID #: 3469
`
`AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`__________ District of __________
`
`Civil Action No.
`
`))))))
`
`Plaintiff
`v.
`
`Defendant
`
`SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
`OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
`
`To:
`
`(Name of person to whom this subpoena is directed)
`’ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
`documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the
`material:
`
`Place:
`
`Attorney Services of Northeast Ohio
`Attn: Benjamin Purser
`221 Springside Dr
`Akron, OH 44333
`
`Date and Time:
`
`’ Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
`other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
`may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
`
`Place:
`
`Date and Time:
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`CLERK OF COURT
`
`OR
`
`Signature of Clerk or Deputy Clerk
`
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`Jonathon Studer, 191 N. Wacker Dr., Suite 2700, Chicago, IL 60606
`jonathonstuder@quinnemanuel.com, 312-705-7400
`Notice to the person who issues or requests this subpoena
`A notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom
`it is directed. Fed. R. Civ. P. 45(a)(4).
`
` District of Delaware
`
`Globus Medical, Inc.
`
`21-1445 (JPM)
`
`Life Spine, Inc.
`
`Windsor Fasteners LLC d/b/a Concrete Fastening Systems
`1231 East 26th Street, Cleveland, OH 44114
`
`4
`
`See attached Schedule A.
`
`05/09/2023 5:00 pm
`
`04/21/2023
`
`/s/ Jonathon Studer
`
`Life Spine, Inc.
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 3 of 29 PageID #: 3470
`
`AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)
`
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`’ I served the subpoena by delivering a copy to the named person as follows:
`
`’ I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`21-1445 (JPM)
`
`0.00
`
`Print
`
`Save As...
`
`Add Attachment
`
`Reset
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 4 of 29 PageID #: 3471
`
`AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)
`
`(c) Place of Compliance.
`
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
` (ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
` (C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
` (i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
` (ii) ensures that the subpoenaed person will be reasonably compensated.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
` (2) Command to Produce Materials or Permit Inspection.
` (A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
` (B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
` (i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
` (A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
` (i) fails to allow a reasonable time to comply;
` (ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
` (iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
` (iv) subjects a person to undue burden.
` (B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`(i) disclosing a trade secret or other confidential research,
`development, or commercial information; or
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
` (A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
` (B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
` (C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
` (D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
` (A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
` (i) expressly make the claim; and
` (ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
` (B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 5 of 29 PageID #: 3472
`
`Schedule A: SUBPOENA TO PRODUCE
`DOCUMENTS, INFORMATION, OR OBJECTS
`
`Definitions
`
`The following definitions and instructions are incorporated by reference in each request for
`
`production:
`
`1.
`
`“You,” “Your,” and “Confast” means Windsor Fasteners LLC (d/b/a Concrete
`
`Fastening Systems) and any entities or persons operating under their control or on their behalf.
`
`2.
`
`The
`
`terms “document” shall
`
`include, without
`
`limitation, all documents,
`
`electronically stored information, and tangible things within the scope of the Federal Rules of Civil
`
`Procedure, including Rule 34.
`
`3.
`
`The term “person” means any natural person or any business, legal, or
`
`governmental entity, organization, or association.
`
`4.
`
`5.
`
`The use of the singular form of any word includes the plural, and vice versa.
`
`“CONFAST Double Expansion Anchor” means the devices advertised on Your
`
`website (confast.com/products-double-expansion) and shown in the video uploaded to YouTube
`
`by Confast on or about July 9, 2007 (https://www.youtube.com/watch?v=9bs-gNjtvfc).
`
`Instructions
`
`1.
`
`You shall search all documents within your possession, custody, or control,
`
`wherever located, including but not limited to any documents placed in storage facilities or in the
`
`possession of any subsidiary, division, employee, agent, representative, attorney, investigator, or
`
`other person acting or purporting to act on your behalf (whether located at his/her residence or
`
`place of business), in order to fully respond to the requests herein.
`
`2.
`
`Please produce the requested documents as they are kept in the ordinary course of
`
`business.
`
`1
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 6 of 29 PageID #: 3473
`
`3.
`
`You are to produce documents from any single file in the same order as they were
`
`found in such file, including any labels, files, folders, and/or containers in which such documents
`
`are located or associated. If copies of documents are produced in lieu of the originals, such copies
`
`should be legible and bound or stapled in the same manner as the original.
`
`4.
`
`If you do not produce each document or thing requested herein as they are kept in
`
`the usual course of business, you must organize and label the documents or things produced to
`
`correspond with the particular document request to which the document or thing is responsive.
`
`5.
`
`Please produce the originals of any document requested and all copies thereof if
`
`any copy is other than identical to the original.
`
`6.
`
`All requests for “documents,” include a request for any “communications,” such as
`
`letters or e-mails.
`
`7.
`
`To the extent you believe that electronically stored information must be searched
`
`and/or produced in response to any request, please provide the information requested by Rules
`
`34(b)(2)(D)-(E) of the Federal Rules of Civil Procedure.
`
`8.
`
`It is Your duty in answering these requests to conduct a reasonable investigation so
`
`that You disclose and produce all available responsive and non-privileged Documents.
`
`9.
`
`If production of any responsive Documents are being withheld on the ground of the
`
`attorney-client privilege, attorney work product, or any other privilege, immunity, or protection,
`
`please provide a privilege log with the following information for each such Document: (a) the
`
`name of the Document; (b) the name of the person(s) who prepared the Document; (c) the name
`
`of the person(s) to whom the Document was directed or circulated; (d) the date(s) on which the
`
`Document was prepared or transmitted; (e) the name of the person(s) now in possession of the
`
`2
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 7 of 29 PageID #: 3474
`
`Document; (f) a description of the subject matter of the Document; and (g) the specific nature of
`
`the privilege or protection claimed with respect to the Document.
`
`10.
`
`If any request herein requires the production of Documents that are no longer in
`
`Your actual or constructive possession, custody, or control or which have been destroyed or lost,
`
`then in lieu of production, You shall state or Identify the title of the Document, the author of the
`
`Document, each person to whom or by whom a copy of the original of the Document was
`
`delivered, forwarded, or has been received, the date of the Document, and the general subject
`
`matter of the Document. In the event You claim that information contained other than in
`
`Documentary form is no longer in Your actual or constructive possession, custody, or control or
`
`has been destroyed or lost, You shall state or Identify the nature of the information, the creator of
`
`the information, the person to whom the information was or was to be forwarded, delivered or for
`
`whom it was prepared, the date of the creation of the information, and the manner in which the
`
`information has been memorialized, if at all.
`
`11.
`
`In any instance where Documents, data, or information requested herein is stored
`
`on a computer, a computer hard drive, a computer mainframe, computer back-up tape, or in any
`
`other electronic format, Defendant requests that You produce the data, information, or Documents
`
`on CD ROM, computer disk, or in hard copy paper form. Further, Defendant requests that You
`
`produce all Documentation or programs that would allow Defendant to run, read, view, print, or
`
`otherwise access any such disks, CD ROM, or other computer information.
`
`12.
`
`You are under a continuing obligation to respond to the requests set forth herein.
`
`Accordingly, if You subsequently gain actual or constructive possession, custody, or control of
`
`any Document called for in the requests set forth herein that has not been produced to Defendant,
`
`3
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 8 of 29 PageID #: 3475
`
`You must produce such Document to Defendant as soon as possible or provide a written
`
`explanation to Defendant as to why You will not produce the Document.
`
`13.
`
`The Documents shall be produced as they are kept in the usual course of business
`
`or shall be organized and labeled to correspond with the categories in the requests.
`
`14.
`
`To the extent a Document is considered confidential in nature, You may designate
`
`it in accordance with the Protective Order entered in the above-captioned matters, a copy of which
`
`is attached as Exhibit A.
`
`
`
`REQUEST NO. 1:
`
`Requests for Production
`
`Documents sufficient to show the manufacture, import, sale, offer for sale, advertisement,
`
`public use, or public disclosure of the CONFAST Double Expansion Anchor prior to September
`
`3, 2009.
`
`REQUEST NO. 2:
`
`Internal technical documentation (e.g., drawings, product photographs) of the CONFAST
`
`Double Expansion Anchor as it was offered before September 3, 2009, including documentation
`
`relating to the means or mechanism by which the device expands.
`
`REQUEST NO. 3:
`
`Documentation sufficient to show the structure and operation (e.g., installation guides,
`
`drawings, product photos) of the CONFAST Double Expansion Anchor as it was offered before
`
`September 3, 2009.
`
`REQUEST NO. 4:
`
`
`
`Five copies of the CONFAST Double Expansion Anchor that were available before
`
`September 3, 2009.
`
`4
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 9 of 29 PageID #: 3476
`
`REQUEST NO. 5:
`
`
`
`Documents sufficient to show whether and, if so, how the design of the CONFAST Double
`
`Expansion Anchor changed between the version sold today and the version available prior to
`
`September 3, 2009.
`
`
`
`5
`
`

`

`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 10 of 29 PageID #: 3477
`Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 10 of 29 PagelD #: 3477
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`
`
`Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 1 of 19 PageID #: 1127Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 11 of 29 PageID #: 3478
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`GLOBUS MEDICAL, INC.,
`
`Plaintiff,
`
`v.
`
`LIFE SPINE, INC.,
`
`Defendant.
`
`Civil Action No. 21-1445 (JPM)
`
`JURY TRIAL DEMANDED
`
`STIPULATED PROTECTIVE ORDER
`
`WHEREAS, the Parties believe that certain information that is or will be encompassed by
`
`discovery demands by the Parties involves the production or disclosure of trade secrets,
`
`confidential business information, or other proprietary information;
`
`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance
`
`with Federal Rule of Civil Procedure 26(c):
`
`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
`
`1.
`
`Any producing person or entity (“Designating Party”) may designate as
`
`confidential for protection under this Order, in whole or in part, any document, information or
`
`material that constitutes or includes, in whole or in part, confidential or proprietary information or
`
`trade secrets of the Designating Party or of a Third Party to whom the Party reasonably believes it
`
`owes an obligation of confidentiality with respect to such document, information or material
`
`(“Protected Material”) to be disclosed or produced to any other person or entity (“Receiving
`
`Party”). Protected Material shall be designated by the Designating Party by affixing a legend or
`
`stamp on such document,
`
`information or material as follows: “CONFIDENTIAL,”
`
`“RESTRICTED - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL - PROSECUTION
`
`

`

`
`
`Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 2 of 19 PageID #: 1128Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 12 of 29 PageID #: 3479
`
`BAR.” The words “CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or
`
`“CONFIDENTIAL - PROSECUTION BAR” shall be placed clearly on each page of the Protected
`
`Material (except deposition and hearing transcripts) for which such protection is sought. For
`
`deposition and hearing
`
`transcripts,
`
`the words “CONFIDENTIAL,” “RESTRICTED -
`
`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL - PROSECUTION BAR” shall be placed
`
`on the cover page of the transcript (if not already present on the cover page of the transcript when
`
`received from the court reporter) by each attorney receiving a copy of the transcript after that
`
`attorney receives notice of the designation of some or all of that transcript as either
`
`“CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL -
`
`PROSECUTION BAR.”
`
`2.
`
`Any Protected Material that is produced prior to the entry of this Order by the Court
`
`shall be subject to the provisions of this Order to the same extent as if such Order had been entered
`
`by the Court as of the date such Protected Material was produced.
`
`3.
`
`With
`
`respect
`
`to
`
`documents,
`
`information
`
`or material
`
`designated
`
`“CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or CONFIDENTIAL -
`
`PROSECUTION BAR (“DESIGNATED MATERIAL”),1 subject to the provisions herein and
`
`unless otherwise stated, this Order governs, without limitation: (a) all hardcopy or electronic
`
`documents, electronically stored information, and/or things as defined by the Federal Rules of
`
`Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits
`
`or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings and
`
`other court filings; (d) affidavits and deposition transcripts and videotape and exhibits; (e)
`
`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
`class of materials designated as “CONFIDENTIAL” or “RESTRICTED - ATTORNEYS’ EYES
`ONLY” or “CONFIDENTIAL – PROSECUTION BAR,” individually and collectively.
`
`2
`
`

`

`
`
`Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 3 of 19 PageID #: 1129Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 13 of 29 PageID #: 3480
`
`responses or answers to interrogatories, requests admissions, requests for production of
`
`documents; and (f) stipulations. All copies, reproductions, extracts, digests and complete or partial
`
`summaries prepared from any DESIGNATED MATERIALS shall also be considered
`
`DESIGNATED MATERIAL and treated as such under this Order.
`
`a. CONFIDENTIAL Designation. Any Designating Party may designate as
`
`CONFIDENTIAL any information, document (including but not limited to
`
`responses to discovery requests), testimony, tangible item, or things to be disclosed
`
`or produced to any Receiving Party if the Designating Party claims in good faith
`
`that such information comprises or contains proprietary, confidential, or
`
`commercially sensitive information or trade secrets, information held confidential
`
`to protect business or commercial interests, or other confidential information,
`
`including, but not limited to, proprietary, confidential, or commercial confidential
`
`information related to confidential technical, sales, marketing, financial, or other
`
`commercially sensitive information. Designation of information under this
`
`paragraph shall constitute a representation that there is a valid basis for such
`
`designation.
`
`b. RESTRICTED - ATTORNEYS’ EYES ONLY Designation. Any Designating
`
`Party may designate as RESTRICTED - ATTORNEYS’ EYES ONLY any
`
`CONFIDENTIAL information whose unauthorized disclosure is likely to cause
`
`competitive damage or lessen a competitive advantage or other commercially or
`
`competitively sensitive information not intended to be shared with in-house counsel
`
`or designated representatives of the Receiving Party absent prior written agreement
`
`of the Designating Party, including (i) highly sensitive financial and economic
`
`3
`
`

`

`
`
`Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 4 of 19 PageID #: 1130Case 1:21-cv-01445-JPM Document 126-1 Filed 04/21/23 Page 14 of 29 PageID #: 3481
`
`information, including business, marketing, and strategic information, plans, and
`
`forecasts, financial planning, financial performance, market plans, competitive
`
`strategies, confidential pricing, web traffic, sales, and profit information, or
`
`information regarding business relationships, and including, without limitation,
`
`information obtained from a nonparty pursuant to a current Nondisclosure
`
`Agreement (“NDA”); (ii) highly sensitive non-technical information or data
`
`relating to future products not yet commercially released and/or strategic plans; (iii)
`
`highly sensitive non-public license agreements or negotiations, and commercial
`
`agreements, settlement agreements, or settlement communications; (iv) highly
`
`sensitive customer lists and other customer-specific information; (v) highly
`
`sensitive employee information; (vii) highly sensitive information of third parties;
`
`(vii) highly sensitive technical information such as development, design, structure,
`
`operation, and other similar information relating to the Party’s products; (viii)
`
`highly sensitive non-public subject matter relating to patents or patentable
`
`information; (ix) highly sensitive nonpublic patent applications and files or
`
`inventions in progress, and (x) other highly sensitive business information.
`
`Designation of information under this paragraph shall constitute a representation
`
`that there is a valid basis for such designation.
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`c. CONFIDENTIAL – PROSECUTION BAR Designation. Any Designating
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`Party may also designate as “CONFIDENTIAL - PROSECUTION BAR” any
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`CONFIDENTIAL technical information that constitutes proprietary, commercially
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`sensitive, or competitive information, including, but not limited to nonpublic
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`technical information (e.g., schematic diagrams, technical reference manuals, and
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`4
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`operations manuals), current research and development, future or pipeline products,
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`on-going research and development information, unpublished pending patent
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`applications and unpublished patent prosecution, the disclosure of which is likely
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`to cause harm to the competitive position of the Designating Party and the receipt
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`of which will trigger the prosecution bar described in paragraph 13 herein.
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`Designation of information under this paragraph shall constitute a representation
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`that there is a valid basis for such designation.
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`4.
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`A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED -
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`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL - PROSECUTION BAR”) may be made at
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`any time. Inadvertent or unintentional production of documents, information or material that has
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`not been designated as DESIGNATED MATERIAL shall not be deemed a waiver in whole or in
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`part of a claim for confidential treatment. Any party that inadvertently or unintentionally produces
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`Protected Material without designating it as DESIGNATED MATERIAL may request destruction
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`of that Protected Material by notifying the recipient(s), as soon as reasonably possible after the
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`Designating Party becomes aware of the inadvertent or unintentional disclosure, and providing
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`replacement Protected Material that is properly designated. The recipient(s) shall then destroy all
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`copies of the inadvertently or unintentionally produced Protected Materials and any documents,
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`information or material derived from or based thereon.
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`5.
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`“CONFIDENTIAL” documents, information and material may be disclosed only
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`to the following persons, except upon receipt of the prior written consent of the Designating Party,
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`upon order of the Court, or as set forth in paragraph 9 herein:
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`a. outside counsel of record in this Action for the Parties;
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`5
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`b. employees or agents of such counsel assigned to and reasonably necessary to assist
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`such counsel in the litigation of this Action;
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`c. up to and including two (2) in-house counsel for the Parties who either have
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`responsibility for making decisions dealing directly with the litigation of this
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`Action, or who are assisting outside counsel in the litigation of this Action;
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`d. outside consultants or experts (i.e., not existing employees or affiliates of a Party
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`or an affiliate of a Party) retained for the purpose of this litigation, provided that:
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`(1) such consultants or experts are not presently employed by the Parties hereto for
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`purposes other than this Action; (2) such consultant or expert is not involved in
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`competitive decision-making on behalf of a Party or a competitor of a Party; and
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`(3) before access is given, the consultant or expert has completed Appendix A
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`attached hereto and the same is served upon the Designating Party with a current
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`curriculum vitae of the consultant or expert and disclosure of the consultant’s or
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`expert’s employment and/or retentions for at least the past four years at least ten
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`(10) days before access to the Protected Material is to be given to that consultant or
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`expert, so that the Designating Party has at least ten (10) days to object to and notify
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`the Receiving Party in writing that it objects to disclosure of Protected Material to
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`the consultant or expert. The Parties agree to promptly confer and use good faith
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`to resolve any such objection. If the Parties are unable to resolve any objection, the
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`Objecting Party may file a motion with the Court within fifteen (15) days of the
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`notice, or within such other time as the Parties may agree, seeking a protective order
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`with respect to the proposed disclosure. The Objecting Party shall have the burden
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`of proving the need for a protective order. No disclosure shall occur until all such
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`6
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`objections are resolved by agreement or Court order. The expert or consultant is
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`best suited to know whether he or she is involved in competitive decision-making
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`on behalf of a Party or a competitor of a Party. An expert who has signed Appendix
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`A is deemed to have confirmed that to the best of their knowledge they are not
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`involved in competitive decision-making on behalf of a Party or a competitor of a
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`Party. Nothing in this Order shall limit a Party’s ability to oppose a disclosed expert
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`on the ground that he or she is involved in competitive decision-making on behalf
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`of a Party or a competitor of a Party.
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`e.
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`independent litigation support services, including persons working for or as court
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`reporters, graphics or design services, jury or trial consulting services, translators,
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`interpreters, photocopy, document imaging, and database services retained by
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`counsel and reasonably necessary to assist counsel with the litigation of this Action;
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`f.
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`the Court and its personnel (provided that, should the information be contained in
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`a filing, the Receiving Party files such information under seal pursuant to paragraph
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`17);
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`g. any mediator who is assigned to hear this matter, and his or her staff, subject to
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`their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order; and
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`h. any other person who may be designated by order of the Court or wit