Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 1 of 25 PageID: 1975
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 2 of 26 PagelD: 191 O
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`JAZZ PHARMACEUTICALS, INC.,
`
`Plaintiff,
`
`v.
`
`AMNEAL PHARMACEUTICALS LLC, et
`al.
`
`Defendants.
`
`Civil Action No. 13-391 (ES)(JAD)
`(Consolidated)
`
`::~&Vi~ CONFIDENTIALITY
`
`ORDER
`
`(Filed Electronically)
`
`WHEREAS, Jazz Pharmaceuticals, Inc. ("Jazz"), Amneal Pharmaceuticals LLC
`
`("Amneal"), Par Pharmaceutical, Inc. ("Par"), Sun Pharmaceutical Industries, Ltd. and Ranbaxy,
`
`Inc. (together, "Sun"), and Watson Laboratories, Inc. ("Watson") are the parties to Civil Action
`
`No. 13-391 (ES)(JAD) (consolidated) (the "action" or "litigation");
`
`WHEREAS, the parties to this action believe that one or more of them will or may be
`
`required to disclose to another party certain documents, things, and information that constitute or
`
`contain trade secrets, technical know-how, or other confidential or proprietary research,
`
`development, business, commercial, or financial information relating to the subject matter of this
`
`action;
`
`WHEREAS, the parties consider such information to be confidential and proprietary
`
`within the meaning of Fed. R. Civ. P. 26(c)(l)(G), Pansy v. Borough of Stroudsburg, 23 F.3d
`
`772 (3d Cir. 1994) and Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) and,
`
`therefore, mutually desire that a Discovery Confidentiality Order limiting use, access to, and
`
`disclosure of such information be entered;
`
`WHEREAS, the parties desire to preserve the legitimate business interests of the parties
`
`2
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`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 2 of 25 PageID: 1976
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 3 of 26 PagelD: 19 1
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`or non-parties in their confidential information without unduly encroaching upon the public's
`
`right to be informed of judicial proceedings in accordance with Local Civil Rule 5 .3;
`
`WHEREAS, a party seeking to protect information filed under seal with the Court must
`
`show good cause for sealing that part of the record, in accordance with Local Civil Rule 5.3;
`
`WHEREAS, the parties contemplate that confidential information produced in this
`
`action may be produced by a non-party, and the parties also seek to facilitate the production and
`
`protection of such confidential information;
`
`WHEREAS, the parties have and/or expect to exchange discovery in connection with
`
`this matter and recognize that confidential information may be disclosed in the course of this
`
`discovery, and in other proceedings in this matter;
`
`WHEREAS, the parties desire to limit the extent of disclosure and use of such
`
`confidential information, and to protect such confidential information from unauthorized use
`
`and/or further disclosure, and wish to ensure that no advantage is gained by any party by the use
`
`of such confidential information which could not have been gained had discovery in this action
`
`not occurred;
`
`WHEREAS, this action involves highly technical subject matter requiring discovery of
`
`trade secrets and proprietary information pertaining to, among other things, drug formulations,
`
`manufacturing processes and techniques, scientific research and development, and other sensitive
`
`competitive information; and
`
`WHEREAS, the parties have consented to the entry of this Discovery Confidentiality
`
`Order pursuant to Fed. R. Civ. P. 26(c)(l)(G) and Local Civil Rule 5.3 and the Court having
`
`considered the foregoing and for good cause shown,
`
`IT IS on thi~day of ~as.. , 2015,
`
`3
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 3 of 25 PageID: 1977
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 4 of 26 PagelD: 19
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`ORDERED, that the following provisions shall govern the conduct of further
`
`proceedings in this action:
`
`Definitions
`
`1.
`
`(a)
`
`The term "Confidential Information" shall mean any tangible thing or oral
`
`testimony that contains or reveals what a party or non-party considers to be its trade secret,
`
`business confidential, or proprietary research, development, commercial, or financial
`
`information.
`
`It may include, without limitation, documents produced in this action, during
`
`formal discovery or otherwise; information of non-parties which the producing or designating
`
`party is under an obligation to maintain in confidence; initial disclosures; answers to
`
`interrogatories and responses to requests for admission or other discovery requests; deposition or
`
`hearing transcripts; affidavits; exhibits; experts' reports; memoranda of law; and tangible things
`
`or objects that are designated confidential pursuant to this Order. The information contained
`
`therein and all copies, abstracts, excerpts, analyses, notes or other writings that contain, reflect,
`
`reveal or otherwise disclose such confidential information shall also be deemed "Confidential
`
`Information." Information originally designated as "Confidential Information" shall not retain
`
`that status after any ruling by the Court denying such status to it. Each party shall act in good
`
`faith in designating information as "Confidential Information."
`
`(b)
`
`The term "Highly Confidential Information" shall mean all information
`
`regarding (i) confidential, highly sensitive, and/or proprietary information pertaining to
`
`marketing, sales, revenues, profits, forecasts, or business plans or strategies for any existing
`
`products or products in development; (ii) past, current or future products other than sodium
`
`oxybate-containing drug products, (iii) past, current or future plans regarding treatment
`
`indications for sodium oxybate-containing drug products other than the treatment indications for
`
`4
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 4 of 25 PageID: 1978
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 5 of 26 PagelD: 19 3
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`which FDA approval is or has been sought; and (iv) scientific or technical information relating
`
`to, referring to, or concerning Xyrem®, Amneal's ANDA No. 203631, Par's ANDA No. 205403,
`
`Sun's ANDA No. 203351, Watson's ANDA No. 204952, and/or the associated products
`
`(including compositions, methods, uses, or processes) that constitute or reflect trade secrets or
`
`other proprietary information, including, but not limited to, draft patent applications, invention
`
`disclosures, non-public patent filings; confidential research, development, testing and studies
`
`relating to drug products, methods, uses or processes; any correspondence or draft
`
`correspondence with the FDA regarding ANDA No. 203631, ANDA No. 205403, ANDA No.
`
`203351, or ANDA No. 204952; any research, development, testing, analysis and/or studies,
`
`including analytical data and/or any chemical materials used to produce a sodium oxybate(cid:173)
`
`containing composition that the producing party reasonably believes the disclosure of which is
`
`likely to cause harm to the competitive position of the party producing the information or could
`
`be used in patent prosecution by the party receiving the information to the competitive
`
`disadvantage of the party producing the information.
`
`It may include, without limitation,
`
`documents produced in the actions, during formal discovery or otherwise; information of non(cid:173)
`
`parties which the producing or designating party is under an obligation to maintain in
`
`confidence; initial disclosures; answers to interrogatories and responses to requests for admission
`
`or other discovery requests; deposition or hearing transcripts; affidavits; exhibits; experts'
`
`reports; memoranda of law; and tangible things or objects that are designated confidential
`
`pursuant to this Order. The information contained therein and all drafts, copies, abstracts,
`
`excerpts, analyses, notes or other writings that contain, reflect, reveal or otherwise disclose such
`
`highly confidential information shall also be deemed "Highly Confidential Information."
`
`Information originally designated as "Highly Confidential Information" shall not retain that
`
`5
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 5 of 25 PageID: 1979
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 6 of 26 PagelD: 19
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`status after any ruling by the Court denying such status to it. Each party shall act in good faith in
`
`designating information as "Highly Confidential Information."
`
`(c)
`
`(d)
`
`( e)
`
`The term "party" means Jazz, Amneal, Par, Sun, and/or Watson.
`
`The term "Defendant" means Amneal, Par, Sun, and/or Watson.
`
`The term "producing party" means any party or nonparty producing
`
`documents or information as Confidential Information or Highly Confidential Information under
`
`this Order.
`
`(f)
`
`The term "receiving party" shall mean any party to whom Confidential
`
`Information or Highly Confidential Information is produced.
`
`Designation of Confidential and Highly Confidential Information
`
`2.
`
`Each producing party who produces or discloses any material that it believes
`
`comprises Confidential Information may so designate it by marking the document containing the
`
`information "CONFIDENTIAL-SUBJECT TO DISCOVERY CONFIDENTIALITY ORDER."
`
`Each producing party who produces or discloses any material that it believes comprises Highly
`
`Confidential Information may so designate it by marking the document containing the
`
`information "HIGHLY CONFIDENTIAL-SUBJECT TO DISCOVERY CONFIDENTIALITY
`
`ORDER." When documents are produced for inspection, the documents shall be treated by the
`
`receiving party as "Highly Confidential" until copies are provided and otherwise designated.
`
`Deposition testimony will be treated as Highly Confidential Information unless otherwise
`
`designated or confidentiality is waived either on the record during the deposition or within thirty
`
`(30) days after receipt of the transcript. Each transcript and/or recording of the deposition shall
`
`be prominently marked on the front with a statement that provides "THIS DEPOSITION
`
`CONTAINS [HIGHLY] CONFIDENTIAL INFORMATION SUBJECT TO DISCOVERY
`
`CONFIDENTIALITY ORDER."
`
`6
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 6 of 25 PageID: 1980
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 7 of 26 PagelD: 19
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`3.
`
`If any Confidential Information or Highly Confidential Information is produced
`
`by a nonparty to these litigations, such a nonparty shall be considered a producing party within
`
`the meaning of that term as it is used in the context of this Order and each of the parties shall be
`
`treated as a receiving party. Confidential Information or Highly Confidential Information that
`
`originated with a nonparty may be designated as such and shall be subject to the restrictions on
`
`disclosure specified herein.
`
`4.
`
`In the event any producing party produces Confidential Information or Highly
`
`Confidential Information that has not been designated as such or not correctly designated, the
`
`producing party may designate or re-designate the information to the same extent as it may have
`
`designated the information before production, by a subsequent notice in writing specifically
`
`identifying the re-designated information, in which event the parties shall henceforth treat such
`
`information in accord with this Order, and shall undertake their best efforts to correct any
`
`disclosure of such information contrary to the re-designation, including retrieving any documents
`
`from persons not qualified to receive them under the re-designation and informing such persons
`
`that they should not further use or disseminate the information thereon. No demonstration or
`
`proof of error, inadvertence, or excusable neglect by the designating party shall be required for
`
`such re-designation.
`
`5.
`
`A party shall not be obligated to challenge the propriety of any designation o
`
`Confidential Information or Highly Confidential Information at the time the designation is made,
`
`and failure to do so shall not preclude a subsequent challenge to the designation. In the even
`
`that any party to this action disagrees at any stage of this action with any designation, such p
`
`shall provide written notice of its disagreement with the designation to the producing party. Th
`
`parties shall first try to dispose of such dispute in good faith on an informal basis without judicia
`
`7
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 7 of 25 PageID: 1981
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 8 of 26 PagelD: 19
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`involvement. If the dispute cannot be resolved, the party challenging the designation may
`
`request appropriate relief from the Court within ten (10) business days after written notice is
`
`provided. The burden of proving that information has been properly designated is on the
`
`producing party. However, the parties agree that designating information as Confidential or
`
`Highly Confidential is improper if such information (i) can be shown to be generally available to
`
`the public at the time of such designation; (ii) becomes part of the public domain or publicly
`
`known or available by publication or otherwise not as the result of any unauthorized act or
`
`omission on the part of the non-designating party; or (iii) is thereafter disclosed to the non-
`
`designating party by a third party as a matter of right.
`
`Disclosure and Use of Confidential Information and Highly Confidential
`Information
`
`6.
`
`(a)
`
`Subject to Paragraphs 10-14, Confidential Information of the producing
`
`party may be disclosed, summarized, described, revealed or otherwise made available in whole
`
`or in part only in accordance with the terms of this Order, and only to the following persons
`
`identified in Paragraphs 6(a)(i)-(viii), with the exception that Jazz may not disclose, summarize,
`
`describe, reveal, or otherwise make available in whole or in part any Confidential Information
`
`produced by one Defendant to any representative, including any outside counsel attorneys of
`
`record, in-house attorneys, employees, independent consultants or experts, and witnesses of
`
`another Defendant:
`
`(i)
`
`the outside counsel attorneys of record for Jazz, Amneal, Par, Sun,
`
`Watson, all of whom represent and agree that they do not undertake patent preparation or
`
`prosecution activities as set forth below in Paragraph 6(b) of this Order; and their attendant staf
`
`and support personnel;
`
`(ii)
`
`a total of up to two (2) designated in-house attorneys employed by
`
`8
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 8 of 25 PageID: 1982
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 9 of 26 PagelD: 19
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`Jazz, a total of up to two (2) designated in-house attorneys employed by Amneal, a total of up to
`
`two (2) designated in-house attorneys employed by Par, a total of up to two (2) designated in(cid:173)
`
`house IP personnel employed by Sun, and a total of up to two (2) designated in-house attorneys
`
`employed by Watson, who have a need to know Confidential Information or Highly Confidential
`
`Information to fulfill their duties and responsibilities in connection with this litigation, provided
`
`such attorneys and staff have complied with Paragraph 12 hereof, the designated in-house
`
`attorneys (and IP personnel for Sun) for the parties being as follows:
`
`For Jazz: Jana Gold;
`
`who, after receipt of Confidential Information or Highly Confidential Information, and in
`
`addition to the other terms of this Discovery Confidentiality Order, shall not disclose to the FDA,
`
`the PTO, or any nonparty, any Confidential Information or Highly Confidential Information.
`
`For Amneal: Ken Zeidner and Lars Taavola;
`
`who, after receipt of Confidential Information or Highly Confidential Information, and in
`
`addition to the other terms of this Discovery Confidentiality Order, shall not disclose to the FDA,
`
`the PTO, or any nonparty, any Confidential Information or Highly Confidential Information.
`
`Further, the designated in-house attorneys for Amneal may not receive Confidential Information
`
`or Highly Confidential Information of Par, Sun, or Watson.
`
`For Par: David Silverstein and Larry Brown
`
`who, after receipt of Confidential Information or Highly Confidential Information, and in
`
`addition to the other terms of this Discovery Confidentiality Order, shall not disclose to the FDA,
`
`the PTO, or any nonparty, any Confidential Information or Highly Confidential Information.
`
`Further, the designated in-house attorneys for Par may not receive Confidential Information or
`
`Highly Confidential Information of Amneal, Sun, or Watson.
`
`9
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 9 of 25 PageID: 1983
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 10 of 26 PagelD: 19 8
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`For Sun: Kathryn Jones and B Vijayaraghavan
`
`who, after receipt of Confidential Information or Highly Confidential Information, and in
`
`addition to the other terms of this Discovery Confidentiality Order, shall not disclose to the FDA,
`
`the PTO, or any nonparty, any Confidential Information or Highly Confidential Information.
`
`Further, the designated in-house IP personnel for Sun may not receive Confidential Information
`
`or Highly Confidential Information of Amneal, Par, or Watson.
`
`For Watson: Brian Anderson;·
`
`who, after receipt of Confidential Information or Highly Confidential Information, and in
`
`addition to the other terms of this Discovery Confidentiality Order, shall not disclose to the FDA,
`
`the PTO, or any nonparty, any Confidential Information or Highly Confidential Information.
`
`Further, the designated in-house attorneys for Watson may not receive Confidential Information
`
`or Highly Confidential Information of Amneal, Par, or Sun.
`
`(iii)
`
`independent consultants or experts retained by a party to this
`
`action, who are not employees, officers or directors of any party, and not anticipated to become
`
`employees, officers or directors of that party and who are retained or employed as bona fide
`
`consultants or experts for purposes of this litigation, whether full or part time, by or at the
`
`direction of counsel for that party, and any employees and/or assistants working under the direct
`
`supervision and control of such consultants or experts, provided such persons have complied
`
`with Paragraph 12 hereof;
`
`(iv)
`
`potential witnesses in this action who are directors, officers,
`
`employees, or corporate designees of the producing party under Fed. R. Civ. P. 30(b)(6), but
`
`only at deposition or trial;
`
`(v)
`
`potential witnesses in this action (including, but not limited to,
`
`10
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 10 of 25 PageID: 1984
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 11of26 PagelD: 1 9
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`those who were formerly directors, officers, employees or experts of the producing party), but
`
`only for those witnesses if the Confidential or Highly Confidential Information was in existence
`
`during the period of his or her service or employment and foundation is established that the
`
`witness was involved in the project to which the Confidential or Highly Confidential Information
`
`relates so that it is reasonable that the witness had access to the Confidential or Highly
`
`Confidential Information during the course of his or her service or employment) and their
`
`counsel, provided that the information was authored by, created by, addressed to, received by,
`
`signed by, or is otherwise established to have been known to the witness; but only at deposition
`
`or trial;
`
`(vi)
`
`the Court, including clerks, court personnel, and court reporters
`
`and videographers employed in connection with this action;
`
`(vii)
`
`outside photocopying, imaging, data base, graphics or design
`
`services or other support services retained by outside counsel for purposes of this action; and
`
`(viii) other persons only upon Order of the Court for good cause shown
`
`or upon written stipulation of the Producing Party.
`
`(b)
`
`Subject to Paragraphs 10-14, Highly Confidential Information of the
`
`producing party shall be subject to the same restrictions as Confidential Information. Jazz may
`
`not disclose, summarize, describe, reveal, or otherwise make available in whole or in part any
`
`Highly Confidential Information produced by one Defendant to any representative, including any
`
`outside counsel attorneys of record, in-house attorneys, employees, independent consultants or
`
`experts, and witnesses of another Defendant. Notwithstanding the foregoing, the specified
`
`persons designated by the parties in Paragraphs 6(a)(i)-(ii) shall not have access to Highly
`
`Confidential Information if they are involved, either formally or informally, for the length of this
`
`11
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 11 of 25 PageID: 1985
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 12 of 26 PagelD: 1 O
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`litigation plus one year after a final, non-appealable judgment in this litigation, in the preparation
`
`or prosecution of any patent application that covers sodium oxybate (including compositions,
`
`methods, distribution methods, uses, or processes). Such involvement in the preparation or
`
`prosecution of any patent application includes, but is not limited to: (1) obtaining disclosure
`
`materials for new inventions and inventions under development; (2) investigating prior art
`
`relating to those inventions; (3) making or consulting or advising in any way on strategic
`
`decisions on the type and scope of patent prosecution that might be available or worth pursuing
`
`for such inventions; (4) writing, reviewing, editing or approving new applications or
`
`continuations-in-part of applications to cover those inventions; or (5) strategically amending or
`
`surrendering claim scope during prosecution. For the avoidance of doubt, any attorney identified
`
`in Paragraphs 6(a)(i)-(ii) who accesses Highly Confidential Information shall not be involved,
`
`formally or informally, for the length of this litigation plus one year after a final, non-appealable
`
`judgment in this litigation, in patent preparation and prosecution activities as set forth above.
`
`Further, the specified persons designated by the parties in Paragraphs 6(a)(i)-(ii) that have
`
`access to Highly Confidential Information shall not participate, either formally or informally, in
`
`any of the following activities relating to post-grant proceedings (including inter partes review,
`
`post-grant review, covered business method review, or ex parte reexamination) concerning any
`
`patent that covers sodium oxybate: (1) the decision to prepare or file any motion to amend the
`
`claims; (2) any decision regarding the scope of any amendments to the claims; or (3) making or
`
`consulting or advising in any way on strategic decisions on the type and scope of any such
`
`amendments.
`
`7.
`
`Nothing in this Discovery Confidentiality Order shall prevent disclosure of
`
`Confidential Information or Highly Confidential Information if the producing party consents to
`
`12
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 12 of 25 PageID: 1986
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 13 of 26 PagelD: 1£ 51
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`such disclosure or if the Court, after notice to all parties, orders such disclosure.
`
`8.
`
`All Confidential Information and Highly Confidential Information disclosed
`
`pursuant to this Order shall be used by a recipient thereof solely for the purposes of this litigation
`
`and not for any business or competitive purposes. It shall be the duty of each party and each
`
`individual having notice of this Discovery Confidentiality Order to comply with this Order from
`
`the time of such notice.
`
`9.
`
`By written agreement of the parties, or upon motion and order of the Court, the
`
`list of individuals designated under Paragraph 6 to whom Confidential Information or Highly
`
`Confidential Information may be disclosed may be modified or expanded.
`
`10.
`
`If a producing party seeks to protect Confidential Information or Highly
`
`Confidential Information from public disclosure or use during a trial, court appearance or hearing
`
`which is open to the public (a "Court Disclosure"), the producing party shall make an application
`
`to the Court to restrict such disclosure or use, unless consent from the receiving party is
`
`previously obtained. Such application may be made at any time before the Court Disclosure or
`
`within ten (10) business days after the Court Disclosure.
`
`11.
`
`Any party filing any document, material or information designated by another
`
`party as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" shall move pursuant to Local
`
`Civil Rule 5.3(c) to seal such document, material or information to prevent public disclosure.
`
`The party making such a motion also shall designate any document, material or information
`
`which is the subject of the motion as "confidential materials" pursuant to Local Civil Rule
`
`5.3(c)(3), and take appropriate action necessary to assure that such document, material or
`
`information shall remain sealed.
`
`Should a party fail to properly file documents or materials containing Confidential
`
`13
`
`

`

`Case 2:13-cv-00391-ES-JAD Document 144 Filed 06/22/15 Page 13 of 25 PageID: 1987
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`Case 2:13-cv-00391-ES-JAD Document 143-1 Filed 06/19/15 Page 14 of 26 PagelD: 1£ 12
`
`- - - - - - - - - - - - - - - - - - - . - - - - - - - - - ,
`
`Information in accordance with this Order, the Local Civil Rules or the ECF Polices, any party
`
`who in good faith believes that filing under seal is required may, within ten (10) days of learning
`
`of the allegedly defective filing, file a motion with the Court to request an order sealing such
`
`documents or materials. Nothing in this provision relieves a party of liability for damages
`
`caused by the electronic filing of Confidential Information or for damages caused by failure to
`
`properly file under seal documents or materials containing Confidential Information.
`
`12.
`
`No person identified in Paragraph 6(a)(ii)-(viii) shall be given access to
`
`Confidential and/or Highly Confidential Information (if they are entitled to receive Highly
`
`Confidential Information) unless such person shall first sign a Declaration of Compliance with
`
`this Order in the form attached as Exhibit A hereto, acknowledging receipt and understanding of
`
`this Discovery Confidentiality Order; agree to be bound thereby; agree to use the Confidential or
`
`Highly Confidential Information solely for this litigation, and not to disclose any Confidential or
`
`Highly Confidential Information to any other person, firm, or concern in violation of this
`
`Discovery Confidentiality Order; and agree never to use any Confidential or Highly Confidential
`
`Information, directly or indirectly, in competition with the party that disclosed it, nor to
`
`encourage or induce any other person to do so.
`
`13.
`
`Before any person identified in Paragraphs 6(a)(ii)-(iii) may be given access to
`
`Confidential and/or Highly Confidential Information (if they are entitled to receive Highly
`
`Confidential Information), the party seeking to provide such access shall deliver a copy of the
`
`Declaration referred to in Paragraph 12, fully executed by such person, and written notice (by
`
`facsimile or e-mail) to the attorneys for the producing party of the intention to make such
`
`disclosure. In the case of a disclosure to persons identified in Paragraph 6(a)(iii) hereof, the
`
`notice shall state the name and address of the person to whom disclosure is proposed and include
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`14
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`a resume of the background, qualifications and employment of such person. In the case of a
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`disclosure to persons identified in Paragraphs 6(a)(ii) hereof, the notice shall state the
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`individual's name and position.
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`14.
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`For proposed disclosures to persons identified in Paragraphs 6(a)(ii)-(iii) hereof,
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`the producing party, within ten (10) business days from receiving service of written notice
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`provided pursuant to Paragraph 13 hereof, may object to such disclosure by delivery (by
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`facsimile or e-mail) of a written notice of objection on the attorneys for the party seeking to
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`make the disclosure, stating the reasons for the objection. No disclosure of Confidential
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`Information or Highly Confidential Information may occur prior to the expiration of ten (10)
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`business days from the date of service of the written notice of intent to disclose unless consent is
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`granted earlier by the producing party or Ordered by the Court. Consent pursuant to the
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`provisions of this paragraph shall not be unreasonably withheld. If the producing party objects to
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`the disclosure and gives written notice thereof, and the parties are unable to resolve the
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`objection, the party opposing the disclosure must file a motion for a protective order within ten
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`(10) business days of giving the written notice of objection; otherwise, the information may be
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`disclosed to the identified person. If such a motion is made, no disclosure may be made until the
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`objection is resolved by agreement of the designating and receiving parties or the Court denies
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`the motion. Failure to timely object to the disclosure based on information then-disclosed in the
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`written notice pursuant to Paragraph 13 hereof shall operate as a waiver of the objection. Waiver
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`as to a specific disclosure shall not constitute waiver for any subsequent disclosures. In the event
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`that a motion is made, the objecting party shall have the burden of proving that disclosure should
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`not occur.
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`15.
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`Nothing herein shall prevent a producing party from disclosing its own
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`Confidential Information or Highly Confidential Information in any manner that it considers
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`appropriate.
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`16a. Nothing herein shall bar or otherwise restrict counsel from rendering advice to his
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`or her client with respect to this litigation and, in the course thereof, referring to or relying upon
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`his or her examination of Confidential Information or Highly Confidential Information.
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`In
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`rendering such advice and in otherwise communicating with his or her client, counsel shall not
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`disclose any Confidential Information or Highly Confidential Information if such disclosure
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`would be contrary to the provisions of this Discovery Confidentiality Order.
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`16b. All requests to seal documents filed with the Court shall comply with Local Civil
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`Rule 5.3.
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`17.
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`If a party is served with a subpoena, discovery request in another action, or any
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`other request seeking by legal process the production of documents, things, information or other
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`material produced to it by another party, and designated as Confidential Information or Highly
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`Confidential Information in this action, such party shall notify promptly the original producing
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`party so as to provide the original producing party a reasonable opportunity to object to the
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`secondary production. Confidential Information or Highly Confidential information of one party
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`may not be introduced as evidence or otherwise used in support of any claim or defense against
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`another party, other than in support of a party's claims or defenses against the party that
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`produced the Confidential Information or Highly Confidential information in this Action.
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`18.
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`If an additional party joins or is joined in this action, the newly joined party shall
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`not have access to Confidential Information and Highly Confidential Information until the parties
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`agree to a supplemental protective order governing the protection of Confidential Information
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`and Highly Confidential Information.
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`16
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`19.
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`Any third party from whom discovery is sought in this action may designate some
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`or all of the documents, things, information or other material as Confidential Information and
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`Highly Confidential Information under this Discovery Confidentiality Order. If it does so, then
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`each party to the action will have with respect to such Confidential Information and Highly
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`Confidential Information the same obligations which that party has with respect to Confi