Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 1 of 19 PageID #: 1127
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GLOBUS MEDICAL, INC.,
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`Plaintiff,
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`v.
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`LIFE SPINE, INC.,
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`Defendant.
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`Civil Action No. 21-1445 (JPM)
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`JURY TRIAL DEMANDED
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`STIPULATED PROTECTIVE ORDER
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`WHEREAS, the Parties believe that certain information that is or will be encompassed by
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`discovery demands by the Parties involves the production or disclosure of trade secrets,
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`confidential business information, or other proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance
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`with Federal Rule of Civil Procedure 26(c):
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`1.
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`Any producing person or entity (“Designating Party”) may designate as
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`confidential for protection under this Order, in whole or in part, any document, information or
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`material that constitutes or includes, in whole or in part, confidential or proprietary information or
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`trade secrets of the Designating Party or of a Third Party to whom the Party reasonably believes it
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`owes an obligation of confidentiality with respect to such document, information or material
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`(“Protected Material”) to be disclosed or produced to any other person or entity (“Receiving
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`Party”). Protected Material shall be designated by the Designating Party by affixing a legend or
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`stamp on such document,
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`information or material as follows: “CONFIDENTIAL,”
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`“RESTRICTED - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL - PROSECUTION
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`BAR.” The words “CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL - PROSECUTION BAR” shall be placed clearly on each page of the Protected
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`Material (except deposition and hearing transcripts) for which such protection is sought. For
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`deposition and hearing
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`transcripts,
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`the words “CONFIDENTIAL,” “RESTRICTED -
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`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL - PROSECUTION BAR” shall be placed
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`on the cover page of the transcript (if not already present on the cover page of the transcript when
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`received from the court reporter) by each attorney receiving a copy of the transcript after that
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`attorney receives notice of the designation of some or all of that transcript as either
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`“CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL -
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`PROSECUTION BAR.”
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`2.
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`Any Protected Material that is produced prior to the entry of this Order by the Court
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`shall be subject to the provisions of this Order to the same extent as if such Order had been entered
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`by the Court as of the date such Protected Material was produced.
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`3.
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`With
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`respect
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`to
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`documents,
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`information
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`or material
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`designated
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`“CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or CONFIDENTIAL -
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`PROSECUTION BAR (“DESIGNATED MATERIAL”),1 subject to the provisions herein and
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`unless otherwise stated, this Order governs, without limitation: (a) all hardcopy or electronic
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`documents, electronically stored information, and/or things as defined by the Federal Rules of
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`Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits
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`or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings and
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`other court filings; (d) affidavits and deposition transcripts and videotape and exhibits; (e)
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`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.
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`2
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`responses or answers to interrogatories, requests admissions, requests for production of
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`documents; and (f) stipulations. All copies, reproductions, extracts, digests and complete or partial
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`summaries prepared from any DESIGNATED MATERIALS shall also be considered
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`DESIGNATED MATERIAL and treated as such under this Order.
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`a. CONFIDENTIAL Designation. Any Designating Party may designate as
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`CONFIDENTIAL any information, document (including but not limited to
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`responses to discovery requests), testimony, tangible item, or things to be disclosed
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`or produced to any Receiving Party if the Designating Party claims in good faith
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`that such information comprises or contains proprietary, confidential, or
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`commercially sensitive information or trade secrets, information held confidential
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`to protect business or commercial interests, or other confidential information,
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`including, but not limited to, proprietary, confidential, or commercial confidential
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`information related to confidential technical, sales, marketing, financial, or other
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`commercially sensitive information. Designation of information under this
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`paragraph shall constitute a representation that there is a valid basis for such
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`designation.
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`b. RESTRICTED - ATTORNEYS’ EYES ONLY Designation. Any Designating
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`Party may designate as RESTRICTED - ATTORNEYS’ EYES ONLY any
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`CONFIDENTIAL information whose unauthorized disclosure is likely to cause
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`competitive damage or lessen a competitive advantage or other commercially or
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`competitively sensitive information not intended to be shared with in-house counsel
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`or designated representatives of the Receiving Party absent prior written agreement
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`of the Designating Party, including (i) highly sensitive financial and economic
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`3
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`information, including business, marketing, and strategic information, plans, and
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`forecasts, financial planning, financial performance, market plans, competitive
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`strategies, confidential pricing, web traffic, sales, and profit information, or
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`information regarding business relationships, and including, without limitation,
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`information obtained from a nonparty pursuant to a current Nondisclosure
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`Agreement (“NDA”); (ii) highly sensitive non-technical information or data
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`relating to future products not yet commercially released and/or strategic plans; (iii)
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`highly sensitive non-public license agreements or negotiations, and commercial
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`agreements, settlement agreements, or settlement communications; (iv) highly
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`sensitive customer lists and other customer-specific information; (v) highly
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`sensitive employee information; (vii) highly sensitive information of third parties;
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`(vii) highly sensitive technical information such as development, design, structure,
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`operation, and other similar information relating to the Party’s products; (viii)
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`highly sensitive non-public subject matter relating to patents or patentable
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`information; (ix) highly sensitive nonpublic patent applications and files or
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`inventions in progress, and (x) other highly sensitive business information.
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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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`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 with the prior
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`written consent of the Designating Party.
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`6.
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`Documents, information, or material produced in this Action, including but not
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`limited to Protected Material designated as DESIGNATED MATERIAL, shall be used by the
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`Receiving Party only in the litigation of this Action and shall not be used for any other purpose.
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`7
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`7.
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`For Protected Material designated “RESTRICTED - ATTORNEYS ’ EYES
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`ONLY” and “CONFIDENTIAL – PROSECUTION BAR,” access to, and disclosure of, such
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`Protected Material shall be limited to individuals listed in paragraphs 5(a), (b) and (d)-(h) except
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`upon receipt of the prior written consent of the Designating Party, upon order of the Court, or as
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`set forth in paragraph 9 herein. For the sake of clarity, to the extent a Receiving Party believes
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`access to materials designated as “RESTRICTED - ATTORNEYS’ EYES ONLY” by in-house
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`counsel or representatives of the Receiving Party identified under paragraph 5 of this Order is
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`necessary for the purpose of facilitating settlement negotiations, the Receiving Party shall obtain
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`prior written consent from the Designating Party before providing such access.
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`8.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person
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`authorized to have access thereto to any person who is not authorized for such access under this
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`Order. The Parties are hereby ORDERED to safeguard all such documents, information and
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`material to protect against disclosure to any unauthorized persons or entities. In the event of any
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`accidental or inadvertent disclosure of DESIGNATED MATERIAL other than in a manner
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`authorized by this Protective Order, counsel for the party responsible for the disclosure shall
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`immediately notify opposing counsel of all the pertinent facts, and make every effort to prevent
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`further unauthorized disclosure including retrieving all copies of the DESIGNATED MATERIAL
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`from the recipient(s) thereof and securing the agreement of the recipients not to further disseminate
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`the DESIGNATED MATERIAL in any form. Compliance with the foregoing shall not prevent a
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`party from seeking further relief from the Court.
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`9.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use
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`any DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
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`the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have access
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`8
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`to the DESIGNATED MATERIAL by virtue of his or her employment with the Designating Party,
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`(ii) identified in the DESIGNATED MATERIAL as an author, addressee, or copy recipient of such
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`information, (iii) although not identified as an author, addressee, or copy recipient of such
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`DESIGNATED MATERIAL, has, in the ordinary course of business, seen such DESIGNATED
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`MATERIAL, (iv) a current or former officer, director or employee of the Designating Party; (v)
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`counsel for a Party, including outside counsel and in-house counsel (subject to paragraph 7 of this
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`Order); (vi) an independent contractor, consultant, and/or expert retained for the purpose of the
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`litigation of this Action; (vii) court reporters and videographers; (viii) the Court; or (ix) other
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`persons entitled hereunder to access to DESIGNATED MATERIAL. DESIGNATED
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`MATERIAL shall not be disclosed to any other persons unless prior written authorization is
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`obtained from counsel representing the Designating Party or from the Court.
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`10.
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`Parties may, at the deposition or hearing or within thirty (30) days after receipt of
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`a deposition or hearing transcript, designate the deposition or hearing transcript or any portion
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`thereof as “CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL - PROSECUTION BAR” pursuant to this Order. Access to the deposition or
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`hearing transcript so designated shall be limited in accordance with the terms of this Order. Until
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`expiration of the 30-day period, the entire deposition or hearing transcript shall be treated as
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`“RESTRICTED - ATTORNEYS’ EYES ONLY”.
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`11.
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`During depositions, DESIGNATED MATERIAL may be used or marked as
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`exhibits, but shall remain subject to this Order and may not be shown to the witness unless such
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`witness falls within paragraph 9 herein. When a Party designates testimony as DESIGNATED
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`MATERIAL during the deposition, counsel for that Party may exclude from the depositions all
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`person who do not fall within paragraph 9 herein. When portions of a deposition transcript or its
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`9
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`Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 10 of 19 PageID #: 1136
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`exhibits are designated for protection, the transcript or exhibits containing DESIGNATED
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`MATERIAL shall be separately bound by the court reporter, who must affix to the top of each
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`page the legend “CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL - PROSECUTION BAR”; and it is the responsibility for each Party to maintain
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`DESIGNATED MATERIALS in a secure manner and appropriately identified so as to allow
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`access to such information only to such persons and under such terms as is permitted under this
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`Order.
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`12.
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`If a Party wishes to disclose DESIGNATED MATERIAL to such a deponent or
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`witness falling within paragraph 9 herein before or during a deposition or pre-trial hearing, the
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`deponent or witness must be informed of this Order and either sign a copy of Appendix A or
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`consent under oath on the record to abide by its provisions. The Parties agree that this provision
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`does not preclude the Designating Party from objecting to or moving to preclude disclosure to any
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`deponent or witness, or to seek amendment of this provision in the future, if it believes it has a
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`good faith basis for such objection or motion.
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`13.
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`Any recipient of information or materials designated “CONFIDENTIAL–
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`PROSECUTION BAR” shall not prepare, prosecute, supervise, or assist in the prosecution
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`(including interferences, reexaminations, and other proceedings) of any patent or patent
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`application pertaining to the patents-in-suit, spinal implants and spinal implant insertion tools, and
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`methods relating to the use of the implants or tools, including surgical methods before any foreign
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`or domestic agency, including the U.S. Patent and Trademark Office. This prohibition on patent
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`prosecution shall begin when access to Discovery Material designated “CONFIDENTIAL–
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`PROSECUTION BAR” is first received by the affected individuals and shall end the later of i)
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`two (2) years following the entry of a final, appealable judgment or order or the settlement of all
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`10
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`claims on or before the date of any such appealable judgment OR ii) eighteen (18) months
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`following entry of a final non-appealable judgment or order for which appeal has been exhausted
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`or the settlement of all claims after the date of any final, appealable judgment or order. This
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`prosecution bar is personal to the individual receiving Discovery Material designated
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`“CONFIDENTIAL–PROSECUTION BAR” and shall not be imputed to any other person. The
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`foregoing notwithstanding, this provision shall not prohibit outside counsel of record in this Action
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`from participating in an inter partes review of the patents-in-suit provided that such counsel does
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`not participate in or assist with any attempt to amend claims or prosecute new claims as a result of
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`an inter partes review proceeding, including the sharing of any such information with prosecution
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`counsel.
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`14.
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`The Order applies to pretrial discovery. Nothing in this Order shall be deemed to
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`prevent the Parties from introducing any DESIGNATED MATERIAL into evidence at the trial of
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`this Action, or from using any information contained in DESIGNATED MATERIAL at the trial
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`of this Action, subject to any pretrial order issued by this Court. Should a Party intend to use
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`another Party’s DESIGNATED MATERIAL during a trial, court appearance, or hearing which is
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`open to the public, the party intending to reveal such DESIGNATED MATERIAL shall provide
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`the Designating Party with notice of such intent five (5) days prior (or, in the case of trial, notice
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`consistent with the Court’s pretrial order and the parties’ trial disclosure obligations) and an
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`opportunity to object or to make arrangements with the Court to ensure that its DESIGNATED
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`MATERIAL remains confidential.
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`15.
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`A Receiving Party may request in writing to any Designating Party that the
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`designation given to any DESIGNATED MATERIAL be modified or withdrawn. If the
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`Designating Party does not agree to re-designation within ten (10) days of receipt of the written
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`11
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`request, the requesting Party may apply to the Court for relief. Upon any such application to the
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`Court, the burden shall be on the Designating Party to show why its classification is proper. Such
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`application shall be treated procedurally as a motion to compel pursuant to Federal Rules of Civil
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`Procedure 37. In making such application, the requirements of the Federal Rules of Civil
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`Procedure and the Local Rules of the Court shall be met. Pending the Court’s determination of
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`the application, the designation of the Designating Party shall be maintained.
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`16.
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`Each outside consultant or expert to whom DESIGNATED MATERIAL is
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`disclosed in accordance with the terms of this Order shall be advised by counsel of the terms of
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`this Order, shall be informed that he or she is subject to the terms and conditions of this Order, and
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`shall sign an acknowledgment that he or she has received a copy of, has read, and has agreed to be
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`bound by this Order. A copy of the acknowledgment form is attached as Appendix A.
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`17.
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`The Parties must file documents containing DESIGNATED MATERIAL under
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`seal in accordance with the Local Rules of the United States District Court for the District of
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`Delaware, which will govern the Court’s treatment of DESIGNATED MATERIAL. Such
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`DESIGNATED MATERIAL shall not become part of the public record, but shall be part of the
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`record considered by the Court on the issue or issues to which it may be relevant. In the event that
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`one Party determines that it is necessary to file a document that contains information that has been
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`designated “CONFIDENTIAL,” “ RESTRICTED - ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL - PROSECUTION BAR” by another Party, the filing Party shall file such
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`papers under seal. The Parties shall thereafter confer to determine the appropriate redactions that
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`are required before the redacted copy of the filing is due.
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`18.
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`To the extent that discovery or testimony is taken of Third Parties, the Third Parties
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`may designate as “CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’ EYES ONLY,” or
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`12
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`“CONFIDENTIAL - PROSECUTION BAR” any documents, information or other material, in
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`whole or in part, produced or given by such Third Parties. The Third Parties shall have ten (10)
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`days after production of such documents, information or other materials to make such a
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`designation. Until that time period lapses or until such a designation has been made, whichever
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`occurs sooner, all documents, information or other material so produced or given shall be treated
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`as “RESTRICTED - ATTORNEYS’ EYES ONLY” in accordance with this Order.
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`19.
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`To protect against unauthorized disclosure of DESIGNATED MATERIAL, and to
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`comply with all applicable state and federal laws and regulations, the Designating Party may redact
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`from produced documents, materials and other things, the following items, or any other item(s)
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`protected from disclosure by statute or decisional authority or agreed upon by the parties or ordered
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`by the Court:
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`a. The names, street addresses, Social Security numbers, tax identification numbers,
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`and other personal identifying information of patients, health care providers, and
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`individuals in clinical studies or adverse event reports. Other general identifying
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`information, however, such as patient or health provider numbers, shall not be
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`redacted unless required by state or federal law; and
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`b. The Social Security numbers, tax identification numbers and other personal
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`identifying information of employees in any record. But in no event shall any Party
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`redact the names of employees.
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`20.
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`Pursuant to 21 C.F.R. §§ 314.430(e) & (f) and 20.63(f), the names of any person or
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`persons reporting adverse experiences of patients and the names of any patients that are not
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`redacted shall be treated as CONFIDENTIAL, regardless of whether the document containing such
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`names is designated as DESIGNATED MATERIAL.
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`13
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`21.
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`Notwithstanding any of the foregoing provisions, nothing contained in this
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`Protective Order shall be construed as a waiver of a Party’s ability to challenge such redactions
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`pursuant to this Order. The burden as to the propriety of any redaction remains on the Designating
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`Party at all times.
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`22.
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`If another court or an administrative agency requests, subpoenas, or orders the
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`disclosure of DESIGNATED MATERIAL from a Party that has obtained such material under the
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`terms of this Order, the Party so requested, subpoenaed, or ordered shall, if not prohibited under
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`applicable law, notify the Designating Party by electronic mail transmission, express mail, or
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`overnight delivery to counsel of record for the Designating Party not later than ten (10) days prior
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`to producing or disclosing any DESIGNATED MATERIAL, and shall furnish such counsel with
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`a copy of the requests, subpoena, or order. The recipient of the Subpoena shall not disclose any
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`DESIGNATED MATERIAL pursuant to the Subpoena prior to the date specified for production
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`on the Subpoena; and upon receipt of this notice, the Designating party may, in its sole discretion
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`and at its own cost, own cost, move to quash or limit the request, subpoena, or order, otherwise
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`oppose the disclosure of the DESIGNATED MATERIAL, or seek to obtain confidential treatment
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`of such DESIGNATED MATERIAL, to the fullest extent available under law, by the person or
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`entity issuing the request, subpoena, or order. The Party who received the request, subpoena, or
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`order shall not oppose or otherwise interfere with the Designating Party’s effort to quash or limit
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`the request, subpoena, or order.
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`23. Within ninety (90) days of final termination of this Action, including any appeals,
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`all DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes, summaries,
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`descriptions, and excerpts or extracts thereof (excluding excerpts or extracts incorporated into any
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`privileged memoranda of the Parties and materials which have been admitted into evidence in this
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`14
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`Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 15 of 19 PageID #: 1141
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`Action), shall at the Designating Party’s election either be returned to the Designating Party or be
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`destroyed. The Receiving Party shall verify the return or destruction by affidavit furnished to the
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`Designating Party, upon the Designating Party’s request. Notwithstanding this provision, Counsel
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`of Record may retain an archival copy of all pleadings, motion papers, deposition transcripts
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`(including exhibits), transcripts of other proceedings (including exhibits), expert reports (including
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`exhibits), discovery requests and responses (including exhibits), exhibits offered or introduced into
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`evidence at trial, legal memoranda, correspondence or attorney work product, even if such
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`materials contain DESIGNATED MATERIAL. Any such archival copies that contain or
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`constitute DESIGNATED MATERIAL remain subject to this Protective Order.
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`24.
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`After the termination of this Action by entry of a final judgment or order of
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`dismissal, the provisions of this Order shall continue to be binding. This Order is, and shall be
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`deemed to be, an enforceable agreement between the Parties, their agents, and their attorneys. The
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`Parties agree that the terms of this Order shall be interpreted and enforced by this Court.
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`25.
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`The failure to designate documents, information or material in accordance with this
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`Order and the failure to object to a designation at a given time shall not preclude the filing of a
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`motion at a later date seeking to impose such designation or challenging the propriety thereof. The
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`entry of this Order and/or the production of documents, information and material hereunder shall
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`in no way constitute a waiver of any objection to the furnishing thereof, all such objections being
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`hereby preserved.
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`26.
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`Any Party knowing or believing that any other party is in violation of or intends to
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`violate this Order and has raised the question of violation or potential violation with the opposing
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`party and has been unable to resolve the matter by agreement may move the Court for such relief
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`as may be appropriate in the circumstances. Pending disposition of the motion by the Court, the
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`Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 16 of 19 PageID #: 1142
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`Party alleged to be in violation of or intending to violate this Order shall discontinue the
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`performance of and/or shall not undertake the further performance of any action alleged to
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`constitute a violation of this Order.
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`27.
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`No party shall be responsible to another party for any good-faith use made of
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`information that was produced not designated as “CONFIDENTIAL,” “RESTRICTED -
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`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL - PROSECUTION BAR.”
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`28.
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`Production of DESIGNATED MATERIAL by each of the Parties shall not be
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`deemed a publication of the documents information and material (or the contents thereof) produced
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`so as to void or make voidable whatever claim the Parties may have as to the proprietary and
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`confidential nature of the documents, information or other material or its contents.
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`29.
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`Nothing in this Order shall be construed to effect an abrogation, waiver or limitation
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`of any kind on the rights of each of the Parties to assert any applicable discovery or trial privilege.
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`30.
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`Nothing in this Agreed Protective Order shall restrict any party to this lawsuit or its
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`attorneys from disclosing or using, in any manner and for any purpose, its own DESIGNATED
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`MATERIAL.
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`31.
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`The designation of any material made pursuant to this order shall not be construed
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`as a concession by any party that such information is relevant or material to any issues or is
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`otherwise discoverable.
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`32.
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`Each of the Parties shall also retain the right to file a motion with the Court (a) to
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`modify this Order to allow disclosure of DESIGNATED MATERIAL to additional persons or
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`entities if reasonably necessary to prepare and present this Action and (b) to apply for additional
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`protection of DESIGNATED MATERIAL. Furthermore, without application to this Court, any
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`party that is a beneficiary of the protections of this Agreed Protective Order may enter a written
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`Case 1:21-cv-01445-JPM Document 30 Filed 04/04/22 Page 17 of 19 PageID #: 1143
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`agreement releasing any other party hereto from one or more requirements of this Order even if
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`the conduct subject to the release would otherwise violate the terms herein.
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`Dated: April 1, 2022
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`SMITH, KATZENSTEIN & JENKINS LLP
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`MORRIS, NICHOLS,