Case 1:22-cv-00311-WCB Document 186 Filed 08/29/23 Page 1 of 30 PageID #: 15262
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 22-311-WCB
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`JURY TRIAL DEMANDED
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`))))))))))
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`IMPOSSIBLE FOODS INC.,
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`Plaintiff,
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`v.
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`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
`
`Defendants.
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`STIPULATED AMENDED PROTECTIVE ORDER
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`WHEREAS, Plaintiff Impossible Foods Inc. (“Impossible Foods”), Defendant Motif
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`FoodWorks, Inc. (“Motif”), and Defendant Ginkgo Bioworks, Inc. (“Ginkgo”) hereinafter referred
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`to collectively as “the Parties,” believe that certain information that is or will be encompassed by
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`the Parties’ discovery demands involves the production or disclosure of trade secrets, confidential
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`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, upon the stipulation of the Parties in the above-captioned action (the
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`“Action”) to the entry of the following Stipulated Protective Order (the “Protective Order”), the
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`Court hereby ORDERS that:
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`1.
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`Scope of Protection.
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`1.1
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`This Protective Order shall govern any record of information, designated pursuant
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`to ¶ 3 of this Protective Order, produced, exchanged, or served in this Action in accordance with
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`its terms, including, without limitation, all designated deposition testimony, designated
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`interrogatory answers, documents and other discovery materials, whether produced informally or
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`in response to interrogatories, requests for admissions, requests for production of documents, or
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`other formal methods of discovery, or expert reports.
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`1.2
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`This Protective Order shall apply to the Parties and any non-party from whom
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`discovery may be sought and who desires the protection of this Protective Order. If an additional
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`party unrelated to one of the Parties (or a successor in interest to one of the Parties) joins or is
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`joined in this Action, the newly joined party shall not have access to documents or other
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`information produced under protection of this Protective Order until the Parties agree to a
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`supplemental protective order or the newly joined party agrees to be bound by the terms of this
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`Protective Order.
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`2.
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`CONFIDENTIAL and HIGHLY CONFIDENTIAL INFORMATION.
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`2.1
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`As used herein, the term “CONFIDENTIAL INFORMATION” (which herein is
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`synonymous and interchangeable with “CONFIDENTIAL”) means any information used by a
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`party or non-party in or pertaining to its business, which information is not publicly known,
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`including any form of trade secret or other confidential research, development, or commercial
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`information within the meaning of Federal Rule of Civil Procedure 26(c)(1)(G). The designation
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`of CONFIDENTIAL INFORMATION by a party or non-party who seeks to invoke protection
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`under this Protective Order (“Producing Party”) constitutes the Producing Party’s representation
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`that it reasonably and in good faith believes that the designated material constitutes or contains
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`information as described above. In particular, information may be designated CONFIDENTIAL
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`INFORMATION if the information constitutes trade secrets or confidential processes, operations,
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`research, technical or developmental information or apparatus, production, marketing, sales,
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`customers, shipments, or other proprietary or confidential trade secret, technical, business,
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`financial, or personnel information within the meaning of Federal Rule of Civil Procedure
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`2
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`26(c)(1)(G). In addition, the following shall be designated CONFIDENTIAL INFORMATION:
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`(a) all copies, extracts, and complete or partial summaries prepared from such CONFIDENTIAL
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`INFORMATION; (b) portions of deposition transcripts and exhibits thereto that contain,
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`summarize, or reflect the content of any such CONFIDENTIAL INFORMATION; (c) portions of
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`briefs, memoranda, or any other writings filed with the Court, including exhibits thereto, that
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`contain, summarize, or reflect the content of any such CONFIDENTIAL INFORMATION; (d)
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`written discovery responses, answers, or contentions that contain, summarize, or reflect the content
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`of any such CONFIDENTIAL INFORMATION; (e) expert reports that contain, summarize, or
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`reflect the content of any such CONFIDENTIAL INFORMATION; and (f) deposition testimony
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`revealing CONFIDENTIAL INFORMATION.
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`2.2
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`Information may be designated “HIGHLY CONFIDENTIAL INFORMATION”
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`(which herein is synonymous and interchangeable with “HIGHLY CONFIDENTIAL”) where the
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`Producing Party reasonably and in good faith believes the information contains non-public
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`documents, materials, or information relating to (i) commercially sensitive financial information,
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`including business plans, decisions, processes, license agreements, sales projections, profit
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`projections, market share projections, pricing plans and pricing analysis, non-public sales data and
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`analysis, non-public market share data; (ii) past, present, or prospective customers, dealers, and
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`distributors, such as proposals, bids, or contracts; (iii) research and development of products or
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`potential products; (iv) trade secrets, unpublished patent applications, licenses and related
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`negotiations, competitive intelligence, forecasts, or future business or marketing plans; and (v) any
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`other information the disclosure of which could result in competitive or commercial disadvantage
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`to the Producing Party. In addition, the following shall be designated HIGHLY CONFIDENTIAL
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`INFORMATION: (a) all copies, extracts, and complete or partial summaries prepared from such
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`3
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`HIGHLY CONFIDENTIAL INFORMATION; (b) deposition transcripts and exhibits thereto that
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`contain, summarize, or reflect
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`the content of any such HIGHLY CONFIDENTIAL
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`INFORMATION; (c) portions of briefs, memoranda, or any other writings filed with the Court
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`and exhibits thereto that contain, summarize, or reflect the content of any such HIGHLY
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`CONFIDENTIAL INFORMATION; (d) written discovery responses, answers, or contentions that
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`contain, summarize, or reflect
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`the content of any such HIGHLY CONFIDENTIAL
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`INFORMATION; (e) expert reports and exhibits thereto that contain, summarize, or reflect the
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`content of any such HIGHLY CONFIDENTIAL INFORMATION; and (f) deposition testimony
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`revealing HIGHLY CONFIDENTIAL INFORMATION. Information that does not fall into the
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`categories specified above shall not be designated HIGHLY CONFIDENTIAL INFORMATION.
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`2.3
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`Information may be designated “HIGHLY CONFIDENTIAL – PATENT
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`PROSECUTION” where the Producing Party reasonably and in good faith believes the
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`information (1) meets the definition of HIGHLY CONFIDENTIAL INFORMATION and (2) is
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`particularly sensitive research and development, product design, or trade secret product or process
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`information which is of the type that can be included in a patent application and form the basis, or
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`part of the basis, for a patent claim or claims. The HIGHLY CONFIDENTIAL – PATENT
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`PROSECUTION designation is an extraordinary designation and is to be used only in good faith
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`by counsel to protect information that meets the above defined criteria.
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`2.4
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`Biological material
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`or
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`information may
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`be
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`designated
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`“HIGHLY
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`CONFIDENTIAL – STRAIN” where the material or information: (1) comprises physical samples
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`of yeast strains of the Producing Party (“Materials”); (2) comprises physical material(s) directly
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`or indirectly derived from Materials (“Derivative Materials”), or (3) contains or corresponds to
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`information derived directly or indirectly from Materials or Derivative Materials (“Information”).
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`4
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`Materials, Derivative Materials, and/or Information designated “HIGHLY CONFIDENTIAL –
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`STRAIN” shall be treated in accordance with the restrictions set forth in this Protective Order for
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`“HIGHLY CONFIDENTIAL – PATENT PROSECUTION” Information. The parties shall
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`negotiate and enter into Material Transfer Agreement(s) regarding Materials, Derivative Materials,
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`and/or Information prior to the production of any Materials.
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`2.5
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`In the event that a document produced in this Action contains both HIGHLY
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`CONFIDENTIAL INFORMATION (including information that meets the criteria for the
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`HIGHLY CONFIDENTIAL – PATENT PROSECUTION or HIGHLY CONFIDENTIAL –
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`STRAIN designations) and CONFIDENTIAL INFORMATION but is designated HIGHLY
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`CONFIDENTIAL (or HIGHLY CONFIDENTIAL – PATENT PROSECUTION or HIGHLY
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`CONFIDENTIAL – STRAIN) in its entirety by the Producing Party, then any party receiving such
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`document (“Receiving Party”) may request that the Producing Party provide a copy that has any
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`HIGHLY CONFIDENTIAL INFORMATION (or HIGHLY CONFIDENTIAL – PATENT
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`PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN information) redacted and therefore
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`can be treated as containing CONFIDENTIAL INFORMATION (or HIGHLY CONFIDENTIAL
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`INFORMATION). The request shall be in writing, and the Producing Party shall have three (3)
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`business days from receipt of the request to produce such a redacted version.
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`2.6
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`In the event that a party marks a pleading, expert report, contention,
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`correspondence, discovery request, discovery response, or material filed with the Court as
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`containing HIGHLY CONFIDENTIAL INFORMATION (including HIGHLY CONFIDENTIAL
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`– PATENT PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN information) because it
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`contains a party’s own HIGHLY CONFIDENTIAL INFORMATION (including HIGHLY
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`CONFIDENTIAL – PATENT PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN
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`5
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`information), then that party shall, within three (3) business days, provide to the recipient(s) a
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`version that has the Producing Party’s own HIGHLY CONFIDENTIAL INFORMATION
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`(including HIGHLY CONFIDENTIAL – PATENT PROSECUTION information or HIGHLY
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`CONFIDENTIAL – STRAIN information) redacted.
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`3.
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`Designation.
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`3.1
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`Each party shall have the right to designate information as CONFIDENTIAL
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`INFORMATION, HIGHLY CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL –
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`PATENT PROSECUTION, or HIGHLY CONFIDENTIAL – STRAIN subject to this Protective
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`Order. It shall be the duty of the Producing Party to give notice, in accordance with the provisions
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`of this Protective Order, of the information designated to be covered by this Protective Order. To
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`the extent
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`that material
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`is marked CONFIDENTIAL
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`INFORMATION, HIGHLY
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`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL – PATENT PROSECUTION,
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`or HIGHLY CONFIDENTIAL – STRAIN, such material shall only be revealed to or used by
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`limited categories of persons, as provided for herein, and shall not be communicated in any
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`manner, either directly or indirectly, to any person or entity not permitted disclosure pursuant to
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`this Protective Order. Any copies of such material, abstracts, summaries or information derived
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`therefrom, and any notes or other records regarding the contents thereof, also shall be deemed
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`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION, HIGHLY
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`CONFIDENTIAL – PATENT PROSECUTION, or HIGHLY CONFIDENTIAL – STRAIN
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`accordingly, and the terms regarding confidentiality of these materials shall be identical to the
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`terms applicable to the originals.
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`3.2
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`Each page of a document and each thing that constitutes or contains
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`CONFIDENTIAL
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`INFORMATION
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`shall be
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`labeled or marked with
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`the
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`legend
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`6
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`“CONFIDENTIAL INFORMATION – SUBJECT TO PROTECTIVE ORDER” when the
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`document or thing is produced to the Receiving Party. Each page of a document and each thing
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`that constitutes or contains HIGHLY CONFIDENTIAL INFORMATION shall be labeled or
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`marked with the legend “HIGHLY CONFIDENTIAL INFORMATION – SUBJECT TO
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`PROTECTIVE ORDER” when the document or thing is produced to the Receiving Party. Each
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`page of a document and each thing that constitutes or contains information that meets the criteria
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`for HIGHLY CONFIDENTIAL – PATENT PROSECUTION shall be labeled or marked with the
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`legend “HIGHLY CONFIDENTIAL INFORMATION – PATENT PROSECUTION – SUBJECT
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`TO PROTECTIVE ORDER” when the document or thing is produced to the Receiving Party.
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`Each page of a document and each thing that constitutes or contains information that meets the
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`criteria for HIGHLY CONFIDENTIAL – STRAIN shall be labeled or marked with the legend
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`“HIGHLY CONFIDENTIAL INFORMATION – STRAIN – SUBJECT TO PROTECTIVE
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`ORDER” when the document or thing is produced to the Receiving Party or, in the case of
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`Derivative Materials or Information, when created. Anything that cannot be so labeled or marked
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`on its face shall be labeled or marked by placing the appropriate legend on a container or package
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`in which it is produced or on a tag attached thereto. Material produced without any such legend
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`clearly indicating that it is subject to this Protective Order shall not be subject to the protections
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`afforded to such information under this Protective Order unless otherwise agreed by the Parties,
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`ordered by the Court, or designated in accordance with ¶ 13 of this Protective Order.
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`3.3
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`Documents and things produced may be subject to redaction, in good faith by the
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`Producing Party, of information that is subject to the attorney-client privilege or to work-product
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`immunity. Each such redaction, regardless of size, shall be labeled clearly as redacted.
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`Information involving the privacy interests of one or more persons or subject to data privacy
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`7
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`restrictions (such as social security numbers, dates of birth, private addresses or telephone
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`numbers, or other personal information) can be redacted in accordance with the provisions of this
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`paragraph. This paragraph shall not be construed as a waiver of any party’s right to seek disclosure
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`of redacted information. All documents redacted based on attorney-client privilege or work-
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`product immunity shall be listed on a privilege log in accordance with Federal Rule of Civil
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`Procedure 26(b)(5).
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`4.
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`Limit on Use and Disclosure of Designated Information.
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`4.1
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`The production of CONFIDENTIAL
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`INFORMATION or HIGHLY
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`CONFIDENTIAL INFORMATION (including HIGHLY CONFIDENTIAL – PATENT
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`PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN information) by a party under the
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`terms of this Protective Order shall not be construed to mean that the Producing Party has waived
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`any objection to the production, relevancy, or admissibility of such information. Nothing
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`contained herein shall preclude any party from opposing any discovery on any basis. Further,
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`nothing in this Protective Order constitutes an admission by any party that any specific item of
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`CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION (including
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`HIGHLY CONFIDENTIAL – PATENT PROSECUTION or HIGHLY CONFIDENTIAL –
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`STRAIN information) is a trade secret or otherwise is confidential or proprietary to a party.
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`4.2 Material
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`designated CONFIDENTIAL
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`INFORMATION
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`or HIGHLY
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`CONFIDENTIAL INFORMATION (including HIGHLY CONFIDENTIAL – PATENT
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`PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN information) and all information
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`derived therefrom shall be used only by persons permitted access to such information under this
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`Protective Order, shall not be disclosed by the Receiving Party to any party or person not entitled
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`under this Protective Order to have access to such material, and shall not be used by the Receiving
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`8
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`Party for any purpose other than in connection with this Action, including, without limitation, for
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`any research, development, manufacture, patent prosecution, financial, commercial, marketing,
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`regulatory, business, or other competitive purpose (except for settlement of the above-captioned
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`case). Further, absent consent of the Producing Party or further order of this Court, all persons
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`receiving
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`information designated CONFIDENTIAL
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`INFORMATION or HIGHLY
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`CONFIDENTIAL INFORMATION (including HIGHLY CONFIDENTIAL – PATENT
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`PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN information) under this Protective
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`Order from an opposing party in this Action are expressly prohibited from using or disclosing such
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`information in connection with any practice before or communication with the United States Patent
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`and Trademark Office or the Patent Trial and Appeal Board, the United States Food and Drug
`
`Administration, or their counterpart organizations in any foreign jurisdiction, and are expressly
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`prohibited from using or disclosing such information in connection with any other civil action.
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`4.3
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`It is understood that counsel for a party may give advice and opinions to his or her
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`client based on his or her evaluation of CONFIDENTIAL INFORMATION or HIGHLY
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`CONFIDENTIAL INFORMATION (including HIGHLY CONFIDENTIAL – PATENT
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`PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN information) received by the party,
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`provided that such rendering of advice and opinions shall not reveal the content of such
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`information, other than in summary form, except by prior written agreement with counsel for the
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`Producing Party.
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`4.4
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`The Parties agree to meet and confer in good faith prior to trial to establish
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`procedures concerning
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`the use of CONFIDENTIAL
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`INFORMATION or HIGHLY
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`CONFIDENTIAL INFORMATION (including HIGHLY CONFIDENTIAL – PATENT
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`PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN information) at trial. Nothing in this
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`9
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`Protective Order shall preclude any party from moving the Court to seal the courtroom, trial
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`exhibits, or the trial transcript in order to preserve the confidential nature of any CONFIDENTIAL
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`INFORMATION or HIGHLY CONFIDENTIAL INFORMATION (including HIGHLY
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`CONFIDENTIAL – PATENT PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN
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`information) used at trial.
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`5.
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`Disclosure of CONFIDENTIAL INFORMATION.
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`5.1
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`Every person to whom CONFIDENTIAL INFORMATION is to be disclosed,
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`summarized, described, characterized, or otherwise communicated or made available in whole or
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`in part, first shall be advised that the material or information is being disclosed pursuant and subject
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`to the terms of this Protective Order.
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`5.2
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`Except as provided in ¶ 9, documents or information designated CONFIDENTIAL
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`INFORMATION shall be available only to the following persons under the following conditions:
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`(a)
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`The officers, directors, and employees of a party actually engaged in the
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`preparation of this Action for trial. Such persons may disclose
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`CONFIDENTIAL INFORMATION to their secretarial, paralegal, clerical,
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`or legal assistant staff;
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`(b)
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`outside trial counsel or outside attorneys of record for the Parties, including,
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`but not limited to, such attorneys’ partners, associates, staff and contract
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`attorneys, and their authorized secretarial, paralegal, clerical, and legal
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`(c)
`
`(d)
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`assistant staff working on this case;
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`the Court and Court personnel;
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`expert witnesses, consultants, or third-party laboratories retained by the
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`Parties or their counsel to furnish technical or expert services in connection
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`10
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`with this Action or to give testimony with respect to the subject matter of
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`this Action at the trial of this Action or other proceeding herein, who are not
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`objected to pursuant to ¶ 7; and
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`(e)
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`independent litigation support services (including persons working for or as
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`court reporters, videographers, translators/interpreters, graphics or design
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`services, trial/hearing presentation services, expert consultants or witnesses,
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`jury or trial consulting services, document handling/processing, photocopy,
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`document imaging, and database services) retained by counsel and
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`reasonably necessary to assist counsel with the litigation of this Action, who
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`first agree to be bound by the terms of this Protective Order by executing a
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`copy of the Declaration and Confidentiality Undertaking attached hereto as
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`Exhibit A.1 Counsel for the party seeking to disclose material designated
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`under this Protective Order to any such person pursuant to this paragraph
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`1 Mock jurors hired by jury consultants in connection with this litigation may not view or receive
`any CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION
`(including HIGHLY CONFIDENTIAL – PATENT PROSECUTION and HIGHLY
`CONFIDENTIAL – STRAIN information) but may view presentations or summaries derived from
`CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION (including
`HIGHLY CONFIDENTIAL – PATENT PROSECUTION and HIGHLY CONFIDENTIAL –
`STRAIN
`information), and excerpts
`from depositions
`that
`reflect CONFIDENTIAL
`INFORMATION or HIGHLY CONFIDENTIAL INFORMATION (including HIGHLY
`CONFIDENTIAL – PATENT PROSECUTION and HIGHLY CONFIDENTIAL – STRAIN
`information), provided that such excerpts do not contain more than five (5) minutes of testimony
`from any single witness’s deposition, and further provided that: (1) the mock jurors are not
`affiliated with any party to this case (or a party’s direct competitor); (2) the mock jurors first
`execute a copy of the Declaration and Confidentiality Undertaking attached hereto as Exhibit A;
`and (3) the mock jurors agree, in writing, that they will not remove any presentations,
`questionnaires, or notes taken from any location where the mock jurors’ services are to be
`performed.
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`11
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`

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`shall be responsible for retaining the executed original of the Declaration
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`and Confidentiality Undertaking.
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`6.
`
`Disclosure of HIGHLY CONFIDENTIAL INFORMATION, HIGHLY
`CONFIDENTIAL
`– PATENT PROSECUTION,
`and HIGHLY
`CONFIDENTIAL – STRAIN Information.
`
`6.1
`
`Every person to whom HIGHLY CONFIDENTIAL INFORMATION, HIGHLY
`
`CONFIDENTIAL – PATENT PROSECUTION, or HIGHLY CONFIDENTIAL – STRAIN
`
`information is to be disclosed, summarized, described, characterized, or otherwise communicated
`
`or made available in whole or in part, first shall be advised that the material or information is being
`
`disclosed pursuant and subject to the terms of this Protective Order.
`
`6.2
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`Documents
`
`or
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`information
`
`designated HIGHLY CONFIDENTIAL
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`INFORMATION or HIGHLY CONFIDENTIAL – PATENT PROSECUTION shall be available
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`only to the following persons under the following conditions:
`
`(a)
`
`Up to three (3) in-house personnel employed by Impossible Foods, up to
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`three (3) in-house personnel employed by Motif, and up to three (3) in-
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`house personnel employed by Ginkgo, each of whom is an attorney or
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`counsel or, if not an attorney or counsel, is in the legal department/division
`
`of said entity or is responsible for overseeing this litigation and exercises no
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`competitive decision-making authority on behalf of a party. Such
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`designated persons shall execute a copy of the Declaration and
`
`Confidentiality Undertaking attached hereto as Exhibit A, which shall in
`
`turn be provided to outside counsel for the other Parties in this Action, along
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`with the title, business address, and job description of the designated person,
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`at least five (5) business days prior to the disclosure of HIGHLY
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`CONFIDENTIAL INFORMATION to such persons. If a party objects in
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`12
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`writing to a proposed designated in-house personnel within five (5) business
`
`days after the receipt of notice of such proposed designation, the disclosure
`
`may not be made without prior approval by the Court or an express written
`
`agreement between the Parties removing the objection. If the objection
`
`cannot be resolved, the party opposing the proposed individual may raise
`
`the issue with the Court in accordance with the Court’s procedures for
`
`resolution of discovery disputes. Although the burden shall be on the
`
`objecting party to show the Court why the proposed in-house personnel
`
`does not satisfy the requirements of this paragraph and why the disclosure
`
`should not be allowed, the proposing party has the burden of providing
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`sufficient information on all topics described in this paragraph for the Court
`
`to reasonably make that determination. In-house personnel designated
`
`pursuant to this paragraph may disclose HIGHLY CONFIDENTIAL
`
`INFORMATION to their secretarial, paralegal, clerical, or legal assistant
`
`staff. In the event that a member of a party’s designated in-house personnel
`
`no longer has responsibilities relating to this litigation, that party may
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`designate one (1) person, in accordance with the terms of this Protective
`
`Order, to replace the formerly designated person, upon giving written notice
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`of such change to outside counsel for the other Parties in this Action and
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`providing an executed copy of the Declaration and Confidentiality
`
`Undertaking; and
`
`(b)
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`persons described in ¶¶ 5.2 (b), (c), (d), and (e).
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`13
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`6.3
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`Absent written consent of the Producing Party, any person on behalf of the
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`Receiving Party who receives one or more items designated HIGHLY CONFIDENTIAL –
`
`PATENT PROSECUTION by the Producing Party shall not be involved, directly or indirectly, in
`
`any of the following activities: advising on, consulting on, preparing, prosecuting, drafting,
`
`editing, and/or amending of patent applications, specifications, claims, and/or responses to office
`
`actions, or otherwise affecting the scope of claims in patents or patent applications relating to (1)
`
`the field of the inventions of the patents-in-suit, including without limitation the patents asserted
`
`in this action and any patent or application claiming priority to or otherwise related to the patents
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`asserted in this action, before any foreign or domestic agency, including the United States Patent
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`and Trademark Office. To avoid any doubt, “prosecuting” as used in this paragraph does not
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`include participating or assisting in challenging or defending any patents pertaining to the field of
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`the invention of the patents-in-suit before a domestic or foreign agency (including, but not limited
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`to, a reissue protest, ex parte reexamination, inter partes reexamination, inter partes review,
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`postgrant review, or covered business method review), provided that such participation or
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`assistance shall not, directly or indirectly, include suggesting, proposing for substitution, drafting,
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`or amending patent claim language. These prohibitions shall begin when access to items or
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`information designated as HIGHLY CONFIDENTIAL – PATENT PROSECUTION is first
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`received by the affected individual and shall end one year after the final resolution of this action,
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`including all appeals.
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`6.4 Documents, things, or information designated HIGHLY CONFIDENTIAL –
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`STRAIN shall be available only to the following persons under the following conditions:
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`(a)
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`third-party laboratories that have entered into an approved Material
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`Transfer Agreement signed by the laboratory, Impossible, Ginkgo, and
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`Case 1:22-cv-00311-WCB Document 186 Filed 08/29/23 Page 15 of 30 PageID #: 15276
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`Motif, and who under the terms of that Material Transfer Agreement have
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`been granted access to Materials, Derivative Materials, and Information
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`designated as HIGHLY CONFIDENTIAL – STRAIN; and
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`(b)
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`persons described in ¶ 5.2 (b), (c), (d), and (e), provided that disclosure to
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`such persons is also permitted under an approved Material Transfer
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`Agreement.
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`7.
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`Experts, Consultants, and Third-Party Laboratories.
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`7.1
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`If any party desires
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`to disclose documents or
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`information designated
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`CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION (including
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`HIGHLY CONFIDENTIAL – PATENT PROSECUTION or HIGHLY CONFIDENTIAL –
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`STRAIN information) to any expert or consultant pursuant to ¶¶ 5 or 6 above, including any third-
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`party laboratory that may receive documents, materials, or information designated HIGHLY
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`CONFIDENTIAL – STRAIN, it must first provide notice of each such expert or consultant or
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`third-party laboratory in writing (which shall be by email) to the outside counsel of record for the
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`Producing Party. Such notice shall include, for experts or consultants, the proposed expert or
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`consultant’s full name, affiliation, and professional address, an up-to-date curriculum vitae, a list
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`of matters in which the expert or consultant has testified at a deposition, hearing, or trial within
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`the last four years, and an executed copy of the Declaration and Confidentiality Undertaking
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`attached hereto as Exhibit A. If the expert is expected to use or access any HIGHLY
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`CONFIDENTIAL – STRAIN Materials, Derivative Materials, and/or Information, the notice shall
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`also include a disclosure of the security precautions the expert or consultant has in place to
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`maintain the security of the Materials, Derivative Materials, and/or Information designated
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`HIGHLY CONFIDENTIAL – STRAIN. If the disclosure is proposed to a third-party laboratory,
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`such notice shall include the proposed laboratory’s full name, address, and, to the extent the third-
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`party laboratory is expected to receive HIGHLY CONFIDENTIAL – STRAIN Materials,
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`Derivative Materials, and/or Information, details of that third-party laboratory’s protocols to
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`maintain the security of the Materials, Derivative Materials, and/or Information designated
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`HIGHLY CONFIDENTIAL – STRAIN.
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`7.2
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`The Producing Party shall have five (5) business days from receipt of such notice
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`to object in writing to disclosure of such information to an expert, consultant, or third-party
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`laboratory so identified. Any party that fails to object in writing within five (5) business days of
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`receiving such notice shall be deemed to have waived any objection.
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`7.3
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`The Parties shall attempt to resolve any objection informally. Within three (3)
`
`business days of receipt of an objection, the Parties shall meet and confer and attempt to resolve
`
`the objection. If the objection cannot be resolved, the party opposing disclosure of the
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`CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION (including
`
`HIGHLY CONFIDENTIAL – PATENT PROSECUTION or HIGHLY CONFIDENTIAL –
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`STRAIN information) to the expert, consultant, or third-party laboratory may raise the issue with
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`the Court in accordance with the Court’s procedures for resolution of discovery disputes. If the
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`issue is raised with the Court, the party opposing disclosure shall bear the burden of proof with
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`respect to the propriety of its objection. Any party that fails to raise such an issue with the Court
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`within ten (10) business days of notifying a party of an objection pursuant to this paragraph shall
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`be deemed to have waived such objection.
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`8.
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`Designation of Deposition Transcripts.
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`8.1
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`Portions of deposition transcripts containing CONFIDENTIAL INFORMATION
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`or HIGHLY CONFIDENTIAL INFORMATION (including HIGHLY CONFIDENTIAL –
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`PATENT PROSECUTION or HIGHLY CONFIDENTIAL – STRAIN information) may be
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`designated as subject to this Protective Order either on the record during the deposition or by
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`providing written notice, within thirty (30) calendar days following receipt of the official transcript
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`of the deposition, to the reporter and all counsel of record, in which case all counsel receiving such
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`notice shall mark the copies or portions of the designated transcript in their possession or under
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`their control as directed by the designating party.
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`8.2
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`Prior to taking testimony that the Producing Party designates CONFIDENTIAL or
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`HIGHLY CONFIDENTIAL (including HIGHLY CONFIDENTIAL – PATENT PROSECUTION
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`or HIGHLY CONFIDENTIAL – STRAIN), the Produ