Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 1 of 7
`Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF MASSACHUSETTS
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`TEVA PHARMACEUTICALS
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`INTERNATIONAL GMBH and
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`TEVA PHARMACEUTICALS
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`USA, INC.,
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`Plaintiffs,
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`V-
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`ELI LILLY AND COMPANY,
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`Defendant.
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`
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`Civil Action No.
`1:18-cv-12029-ADB
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`JOINT STIPULATED PROTOCOL
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`GOVERNING PRNEEGE LOGS
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`Plaintiffs Teva Pharmaceuticals
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`International GmbH (“Teva GmbH”) and Teva
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`Pharmaceuticals USA, Inc. (“Teva USA” and together with Teva GmbH, “Plaintiffs” or “Teva”)
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`and Defendant Eli Lilly and Company (“Lilly” or “Defendant”) (Teva and Lilly collectively, the
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`“Pa11ies”), through their counsel, hereby stipulate and agree to this Joint Stipulated Protocol
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`Governing Privilege Logs (“Protocol”). All Parties are bound by and subject to the terms of this
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`Order. Nothing contained in this Protocol shall be construed as a waiver of any legally cognizable
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`privilege to withhold any Documents, or of any right to assert such privilege at any stage of the
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`Litigation. No Party shall be required to undertake privilege logging measures beyond the scope
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`of this Protocol unless the Parties agree in advance and in writing, or the Protocol is modified by
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`the Court. All Documents and electronically stored information (“ESI”) for which any Party
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`asserts a claim of protection from disclosure under the attorney—client privilege, work product
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`protection, or any other applicable privilege or protection shall be handled in accordance with this
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`Protocol.
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`Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 2 of 7
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`1.
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`Definitions. Words shall have their normally accepted meanings as employed in
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`this Protocol. The word “shall” is mandatory. The words “includes” and “including” are not
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`limiting. The singular shall include the plural and vice versa. Additionally, the Parties hereby
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`incorporate by reference the definitions set forth in Rule 26.5 of the Local Rules of the United
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`States District Court for the District of Massachusetts (“Local Rules” or “L.R.”) as if fully set forth
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`herein. Certain definitions from the Local Rules have been reproduced below for clarity. In
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`addition, as used herein, the following words shall have the following meanings:
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`(a)
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`As used herein, the term “Document” is defined to be synonymous in
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`meaning and equal in scope to the usage of the term “documents or electronically stored
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`information” in Fed. R. Civ. P. 34(a)(1)(A) and Local Rule 26.5(c)(2). A draft or non-identical
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`copy is a separate document within the meaning of this term.
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`(b)
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`As used herein, the term “Producing Party” shall mean any Party to the
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`Litigation (1:18-cv-12029) or any non-party or third party, including its counsel, directors, officers,
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`employees, business partners, or agents, who produces or files any Document.
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`(c)
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`As used herein, the term “Receiving Party” shall mean any Party to the
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`Litigation, including its counsel, directors, officers, employees, business partners, or agents, who
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`receives any Document in the Litigation from the Producing Party.
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`2.
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`Privilege Logs. Parties shall maintain privilege logs pursuant to Federal Rule of
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`Civil Procedure 26(b)(5). A Producing Party shall provide a privilege log within ninety (90)
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`calendar days of making its first production of Documents responsive to a Request for Production
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`served by a Receiving Party. The Producing Party shall provide an updated privilege log within
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`ninety (90) calendar days after each subsequent production of Documents. A Receiving Party shall
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`be permitted to request that the Producing Party provide a privilege log (original or updated) within
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`2
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`Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 3 of 7
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`a shorter time period if the Receiving Party has a good faith basis for such a request in connection
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`with a scheduled deposition. Following such a request, the Parties shall meet and confer regarding
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`a mutually-agreeable date for provision of the requested privilege log.
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`(a)
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`No Party is required to list on a privilege log any communications regarding
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`the claims and defenses in these proceedings exclusively between a Party and its in-house counsel,
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`outside counsel, an agent of outside counsel other than the Party, any non-testifying experts, and,
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`with respect to information protected by Fed. R. Civ. P. 26(b)(4), testifying experts.
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`(b)
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`No Party is required to list on a privilege log any privileged materials or
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`work product created after September 27, 2018, including by its in-house counsel, outside counsel,
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`an agent of outside counsel other than the Party, any non-testifying experts, and, with respect to
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`information protected by Fed. R. Civ. P. 26(b)(4), testifying experts.
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`(c)
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`If a Producing Party identifies portions of otherwise discoverable
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`information that are privileged and redacts such portions of the otherwise discoverable information
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`on that basis, the Producing Party does not need to provide a log entry where: (i) for email
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`Documents, the face of the redacted Document provides the information that otherwise would
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`appear on a log, the bibliographic information (i.e., to, from, cc, bcc, date/time) is not redacted,
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`and the reason for the redaction is noted on the face of the Document in the redaction box; or (ii)
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`for non-email Documents, the face of the redacted Document provides the information that
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`otherwise would appear on a log or where the information that would otherwise appear on a log is
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`included in the DAT file with that Document’s production, and the redaction is noted on the face
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`of the Document in the redaction box. The following terms will be used to signify the reasons for
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`any privileged redactions: AC Privilege, WP Privilege, and AC/WP Privilege.
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`3
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`Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 4 of 7
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`(d)
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`A Party’s privilege log shall provide at least: objective metadata (to the
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`extent it is reasonably available and does not reflect privileged or protected information); an
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`indication of the privilege or protection being asserted; and a description for each log entry
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`consistent with Fed. R. Civ. P. 26(b)(5)(A)(ii).
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`(e)
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`Privilege logs will be produced in Excel or CSV format, and will be
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`populated with the following extracted metadata fields, to the extent providing this information
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`will not destroy privilege: Custodian, From, To, CC, BCC, Subject, Author, File Name, File
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`Extension, Date Sent, Date Created, Date Last Modified. In-house attorney names shall be
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`designated with an asterisk; outside counsel names will be designated with a double asterisk. With
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`the exception of asterisks to designate legal counsel, a Producing Party shall not modify the
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`existing metadata for any Document listed in a privilege log. If a Producing Party withholds any
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`available metadata for a particular log entry on the basis of privilege, it shall so indicate using the
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`terms set forth in Subparagraph 2(d), above.
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`(f)
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`An email thread may be logged in a single privilege log entry. For email
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`threads that do not have legal personnel listed in the email header metadata, the Producing Party
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`will identify in its privilege log the names of legal personnel that do not appear in the top line
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`metadata. All privilege assertions for the email thread shall be listed on the email thread’s single
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`privilege log entry.
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`(g)
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`If a Receiving Party has a good faith basis for challenging a Producing
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`Party’s privilege determination, the Receiving Party shall promptly inform counsel for the
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`Producing Party in writing of said challenge. If, after conferring, the Parties cannot resolve the
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`dispute despite good faith efforts to do so, the Party challenging a privilege determination may
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`move for a ruling on the issue of privilege. The Producing Party must show by a preponderance
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`4
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`Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 5 of 7
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`of the evidence that the withheld Document or portion thereof, is privileged. If the Court finds
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`that said information is privileged, said information shall remain withheld or redacted and may not
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`be used as evidence by either Party at trial or at a hearing or be relied upon by either Party’s experts.
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`If the Court finds that said information is not privileged, the Producing Party shall provide a
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`version of the Document removing any redaction for privilege that was the subject of the Court’s
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`ruling within ten (10) business days of the Court’s decision or, if the Producing Party challenges
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`such a decision, within ten (10) business days of the conclusion of any and all proceedings or
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`interlocutory appeals challenging the decision, or within any time specified by the Court or Local
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`Rules if they dictate a shorter period for production.
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`3.
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`Additional Parties. The terms of this Protocol shall be binding upon all current and
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`future Parties to the Litigation and their counsel. Within seven (7) calendar days of the entry of
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`appearance by a new Party to the Litigation, the Party responsible for the appearance of the new
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`Party shall serve a copy of this Protocol on the new Party’s counsel. When serving subpoenas on
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`non-parties, a copy of this Protocol shall be included, and the subpoena shall expressly incorporate
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`by reference the terms of this Protocol. Any non-party producing any Document in the Litigation
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`shall maintain privilege logs pursuant to this Protocol.
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`4.
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`Compliance with Federal and Local Rules. This Protocol does not relieve any Party
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`or non-party from compliance with the Federal Rules of Civil Procedure, the Local Rules of the
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`District of Massachusetts, or any other orders of this Court with respect to discovery issues.
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`5.
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`Modification by the Court. Nothing in this Protocol shall prevent any Party or other
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`person from seeking modification of this Protocol or from objecting to discovery that it believes
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`to be otherwise improper. The Court may allow, after notice to the Parties, the disclosure of any
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`Document or information covered by this Protocol, and may modify this Protocol at any time in
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`5
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`Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 6 of 7
`Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 6 of 7
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`the interests of justice, and to ensure that any proceeding before this Court is fair, efficient, and
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`consistent with the public interest.
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`SO STIPULATED, IT IS SO ORDERED.
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`Date: August 24, 2020
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`/s/ Allison D. Burroughs
`ALLISON D. BURROUGHS
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`U.S. DISTRICT JUDGE
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`Case 1:18-cv-12029-ADB Document 61 Filed 08/24/20 Page 7 of 7
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`Dated: August 21, 2020
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`/s/ Elaine Herrmann Blais
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`Douglas J. Kline (BBO# 556680)
`Elaine Herrmann Blais (BBO# 656142)
`Robert Frederickson III (BBO# 670111)
`Joshua S. Weinger (BBO# 690814)
`Alexandra Lu (BBO# 691114)
`Eric Romeo (BBO# 691591)
`Martin C. Topol (BBO# 696020)
`GOODWIN PROCTER LLP
`100 Northern Avenue
`Boston, MA 02210
`Tel.: (617) 570-1000
`Fax: (617) 523-1231
`dkline@goodwinlaw.com
`eblais@goodwinlaw.com
`rfrederickson@goodwinlaw.com
`jweinger@goodwinlaw.com
`alu@goodwinlaw.com
`eromeo@goodwinlaw.com
`mtopol@goodwinlaw.com
`
`I. Neel Chatterjee (pro hac vice)
`GOODWIN PROCTER LLP
`601 Marshall St.
`Redwood City, CA 94063
`Tel.: (650) 752-3100
`Fax: (650) 853-1038
`nchatterjee@goodwinlaw.com
`
`Natasha Daughtrey (pro hac vice)
`GOODWIN PROCTER LLP
`601 S. Figueroa St.
`Los Angeles, CA 90017
`Tel.: (213) 426-2500
`Fax: (213) 623-1673
`ndaughtrey@goodwinlaw.com
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`Attorneys for Plaintiffs
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`/s/ Emily R. Gabranski (with permission)
`Andrea L. Martin (BBO 666117)
`BURNS & LEVINSON LLP
`125 High Street
`Boston, MA 02110-1624
`(617) 345-3000
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`Charles E. Lipsey
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Square
`Reston, VA 20190-5675
`
`William B. Raich
`Danielle A. Duszczyszyn
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
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`Emily R. Gabranski (BBO 694417)
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`2 Seaport Lane
`Boston, MA 02210-2001
`Emily.Gabranski@finnegan.com
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`Mark J. Stewart
`Sanjay M. Jivraj
`Eli Lilly and Company
`Lilly Corporate Center Patent Dept.
`Indianapolis, IN 46285
`stewart_mark@lilly.com
`jivraj_sanjay@lilly.com
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`Attorneys for Defendant
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`7
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