Case 2:13-cv-00391-ES-JAD Document 48 Filed 11/26/13 Page 1 of 21 PageID: 593
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`---------------,
`
`Charles M. Lizza
`William C. Baton
`SAUL EWING LLP
`The Legal Center
`One Riverfront Plaza, Suite 1520
`Newark, NJ 07102-5426
`(973) 286-6700
`clizza@ saul. com
`
`Attorneys for Plaintiff
`Jazz Pharmaceuticals, Inc.
`
`Paul H. Kochanski
`LERNER, DAVID, LITIENBERG,
`KRUMHOLZ & MENTLIK, LLP
`600 South A venue West
`Westfield, NJ 07090
`(908) 654-5000
`pkochanski@ ldlkm.com
`
`Attorneys for Defendant
`Amneal Pharmaceuticals, LLC
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`JAZZ PHARMACEUTICALS, INC.,
`
`Civil Action No. 13-391 (ES)(JAD)
`
`Plaintiff,
`
`v.
`
`AMNEAL PHARMACEUTICALS, LLC,
`
`Defendant.
`
`J DISCOVERY
`'
`[
`CONFIDENTIALITY ORDER
`
`(Filed Electronically)
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`

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`Case 2:13-cv-00391-ES-JAD Document 48 Filed 11/26/13 Page 2 of 21 PageID: 594
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`WHEREAS, Jazz Pharmaceuticals, Inc. ("Jazz") and Amneal Pharmaceuticals, LL
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`("Amneal") are the parties to Civil Action No. 13-391 and 13-cv-5450 (ES)(JAD) (consolidated
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`(the "action" or "litigation");
`
`WHEREAS, the parties to this action believe that one or more of them will or may b
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`required to disclose to another party certain documents, things, and information that constitute o
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`contain trade secrets, technical know-how, or other confidential or proprietary research
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`development, business, commercial, or financial information relating to the subject matter of thi
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`action;
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`WHEREAS, the parties consider such information to be confidential and proprieta
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`within the meaning of Fed. R. Civ. P. 26(c)(7), Pansy v. Borough of Stroudsburg, 23 F.3d 77
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`(3d Cir. 1994) and Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) and, therefore
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`mutually desire that a Discovery Confidentiality Order limiting use, access to, and disclosure o
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`such information be entered;
`
`WHEREAS, the parties desire to preserve the legitimate business interests of the partie
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`or non-parties in their confidential information without unduly encroaching upon the public'
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`right to be informed of judicial proceedings in accordance with Local Civil Rule 5.3;
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`WHEREAS, a party seeking to protect information filed under seal with the Court mu
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`show good cause for sealing that part of the record, in accordance with Local Civil Rule 5.3;
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`WHEREAS, the parties contemplate that confidential information produced in thi
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`action may be produced by a non-party, and the parties also seek to facilitate the production an
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`protection of such confidential information;
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`WHEREAS, the parties have and/or expect to exchange discovery in connection wi
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`this matter and recognize that confidential information may be disclosed in the course of thi
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`discovery, and in other proceedings in this matter;
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`WHEREAS, the parties desire to limit the extent of disclosure and use of sue
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`confidential information, and to protect such confidential information from unauthorized us
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`and/or further disclosure, and wish ~o ensure that no advantage is gained by any party by the us
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`of such confidential information which could not have been gained had discovery in this actio
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`not occurred;
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`WHEREAS, this action involves highly technical subject matter requiring discovery o
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`trade secrets and proprietary information pertaining to, among other things, drug formulations
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`manufacturing processes and techniques, scientific research and development, and other sensitiv
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`competitive information; and
`
`WHEREAS, the parties have consented to the entry of this Discovery Confidentialit
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`Order pursuant to Fed. R. Civ. P. 26(c)(7) and Local Civil Rule 5.3 and the Court havin
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`considered the foregoing and for good cause shown,
`
`IT IS on this_ day of ______ , 2013,
`
`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 ora
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`testimony that contains or reveals what a party or non-party considers to be its trade secret
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`business confidential, or proprietary research, development, commercial, or financia
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`information.
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`It may include, without limitation, documents produced in this action, durin
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`formal discovery or otherwise; information of non-parties which the producing or designatin
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`party is under an obligation to maintain in confidence; initial disclosures; answers t
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`3
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`

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`interrogatories and responses to requests for admission or other discovery requests; deposition o
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`hearing transcripts; affidavits; exhibits; experts' reports; memoranda of law; and tangible thing
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`or objects that are designated confidential pursuant to this Order. The information containe<
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`therein and all copies, abstracts, excerpts, analyses, notes or other writings that contain, reflect
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`reveal or otherwise disclose such confidential information shall also be deemed "Confidentia
`
`Information." Information originally designated as "Confidential Information" shall not retai
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`that status after any ruling by the Court denying such status to it. Each party shall act in gooc
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`faith in designating information as "Confidential Information."
`
`(b)
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`The term "Highly Confidential Information" shall mean all informatior
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`regarding (i) confidential, highly sensitive, and/or proprietary information pertaining tc
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`marketing, sales, revenues, profits, forecasts, or business plans or strategies for any existin!
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`products or products in development; (ii) past, current or future products other than sodiurr
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`oxybate-containing drug products, (iii) past, current or future plans regarding treatmen
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`indications for sodium oxybate-containing drug products other than the treatment indications fo
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`which FDA approval is or has been sought; and (iv) scientific or technical information relatin!
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`to, referring to, or concerning Xyrem®, Amneal's ANDA No. 203631 and/or the associatec
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`products (including compositions, methods, uses, or processes) that constitute or reflect trad{
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`secrets or other proprietary information, including, but not limited to, draft patent applications
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`invention disclosures, non-public patent filings; confidential research, development, testing anc
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`studies relating to drug products, methods, uses or processes; any correspondence or draf
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`correspondence with the FDA regarding ANDA No. 203631; any research, development, testing
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`analysis and/or studies, including analytical data and/or any chemical materials used to produce~
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`sodium oxybate-containing composition that the producing party reasonably believes th(
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`4
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`disclosure of which is likely to cause harm to the competitive position of the party producing the
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`information or could be used in patent prosecution by the party receiving the information to the
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`competitive disadvantage of the party producing the information.
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`It may include, withou
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`limitation, documents produced in the actions, during formal discovery or otherwise; informatior
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`of non-parties which the producing or designating party is under an obligation to maintain ir
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`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 confidentia
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`pursuant to this Order. The information contained therein and all drafts, copies, abstracts
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`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 tha
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`status after any ruling by the Court denying such status to it. Each party shall act in good faith in
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`designating information as "Highly Confidential Information.''
`
`(c)
`
`(d)
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`The term "party" means Jazz and/or Amneal.
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`The term "producing party" means any party or nonparty producing
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`documents or information as Confidential Information or Highly Confidential Information unde
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`this Order.
`
`(e)
`
`The term "receiving party" shall mean any party to whom Confidentia
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`Information or Highly Confidential Information is produced.
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`Designation of Confidential and Highly Confidential Information
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`2.
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`Each producing party who produces or discloses any material that it believes
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`comprises Confidential Information may so designate it by marking the document containing the
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`information "CONFIDENTIAL-SUBJECT TO DISCOVERY CONFIDENTIALITY ORDER.'
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`5
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`

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`Each producing party who produces or discloses any material that it believes comprises Highl)
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`Confidential Information may so designate it by marking the document containing tht
`
`information "HIGHLY CONFIDENTIAL-SUBJECT TO DISCOVERY CONFIDENTIALIT't
`
`ORDER." When documents are produced for inspection, the documents shall be treated by th<
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`receiving party as "Highly Confidential" until copies are provided and otherwise designated
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`Deposition testimony will be treated as Highly Confidential Information unless otherwist
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`designated or confidentiality is waived either on the record during the deposition or within thirt
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`(30) days after receipt of the transcript. Each transcript and/or recording of the deposition shal
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`be prominently marked on the front with a statement that provides "THIS DEPOSITIOJ\
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`CONTAINS [HIGHLY] CONFIDENTIAL INFORMATION SUBJECT TO DISCOVERY
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`CONFIDENTIALITY ORDER."
`
`3.
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`If any Confidential Information or Highly Confidential Information is producec
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`by a nonparty to these litigations, such a nonparty shall be considered a producing party withir
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`the meaning of that term as it is used in the context of this Order and each of the parties shall be
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`treated as a receiving party. Confidential Information or Highly Confidential Information tha
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`originated with a nonparty may be designated as such and shall be subject to the restrictions or
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`disclosure specified herein.
`
`4.
`
`In the event any producing party produces Confidential Information or Highl)
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`Confidential Information that has not been designated as such or not correctly designated, the
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`producing party may designate or re-designate the information to the same extent as it may have
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`designated the information before production, by a subsequent notice in writing specificall)
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`identifying the redesignated information, in which event the parties shall henceforth treat suet
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`information in accord with this Order, and shall undertake their best efforts to correct am
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`6
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`

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`Case 2:13-cv-00391-ES-JAD Document 48 Filed 11/26/13 Page 7 of 21 PageID: 599
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`disclosure of such information contrary to the re-designation, including retrieving any document
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`from persons not qualified to receive them under the re-designation and informing such person
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`that they should not further use or disseminate the information thereon. No demonstration o
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`proof of error, inadvertence, or excusable neglect by the designating party shall be required fo
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`such re-designation ..
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`5.
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`A party shall not be obligated to challenge the propriety of any designation o
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`Confidential Information or Highly Confidential Information at the time the designation is made
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`and failure to do so shall not preclude a subsequent challenge to the designation. In the even
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`that any party to this action disagrees at any stage of this action with any designation, such part)
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`shall provide written notice of its disagreement with the designation to the producing party. The
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`parties shall first try to dispose of such dispute in good faith on an informal basis without judicia
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`involvement.
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`If the dispute cannot be resolved, the party challenging the designation rna)
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`request appropriate relief from the Court within ten ( 1 0) business days after written notice i~
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`provided. The burden of proving that information has been properly designated is on the
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`producing party. However, the parties agree that designating information as Confidential o
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`Highly Confidential is improper if such information (i) can be shown to be generally available tc
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`the public at the time of such designation; (ii) becomes part of the public domain or publici'
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`known or available by publication or otherwise not as the result of any unauthorized act o
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`omission on the part of the non-designating party; or (iii) is thereafter disclosed to the non
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`designating party by a third party as a matter of right.
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`Disclosure and Use of Confidential Information
`and Highly Confidential Information
`
`6.
`
`(a)
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`Subject to Paragraphs 10-1 4, Confidential Information of the producin~
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`party may be disclosed, summarized, described, revealed or otherwise made available in whole
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`7
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`Case 2:13-cv-00391-ES-JAD Document 48 Filed 11/26/13 Page 8 of 21 PageID: 600
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`or in part only in accordance with the terms of this Order, and only to the following persons:
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`(i)
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`outside counsel of record for Jazz, Amneal, and employees of sud
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`counsel all of whom represent and agree that they do not undertake patent preparation o
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`prosecution activities as set forth below in Paragraph 6(b) of this Order;
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`(ii)
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`a total of up to two (2) designated in-house attorneys employed b'
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`Jazz and a total of up to two (2) designated in-house attorneys employed by Amneal, who have'
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`need to know Confidential Information or Highly Confidential Information to fulfill their dutie
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`and responsibilities in connection with this litigation, provided such attorneys and staff havt
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`complied with Paragraph 12 hereof, the designated in-house attorneys for the parties being a
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`follows:
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`For Jazz: Jana Gold and Mathew DosSantos;
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`who, after receipt of Confidential Information or Highly Confidential Information, and in
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`addition to the other terms of this Discovery Confidentiality Order, shall not disclose to the FDA
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`the PTO, or any nonparty, any Confidential Information or Highly Confidential Information.
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`For Amneal: Kenneth Cappel and Ken Zeidner;
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`who, after receipt of Confidential Information or Highly Confidential Information, and in
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`addition to the other terms of this Discovery Confidentiality Order, shall not disclose to the FDA
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`the PTO, or any nonparty, any Confidential Information or Highly Confidential Information.
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`(iii)
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`up to two employees of a receiving party and their immediat(
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`support staff;
`
`(iv)
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`independent consultants or experts retained by a party to thi
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`action, who are not employees, officers or directors of any party, and not anticipated to become
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`employees, officers or directors of that party and who are retained or employed eas bona fide
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`8
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`consultants or experts for purposes of this litigation, whether full or part time, by or at th
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`direction of counsel for that party, and any employees and/or assistants working under the direc
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`supervision and control of such consultants or experts, provided such persons have complie
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`with Paragraph 12 hereof;
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`(v)
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`potential witnesses in this action who are directors, officers
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`employees, or corporate designees of the producing party under Fed. R. Civ. P. 30(b)(6), bu
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`only at deposition or trial;
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`(vi)
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`potential witnesses in this action (including, but not limited to
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`those who were formerly directors, officers, employees or experts of the producing party), bu
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`only for those witnesses if the Confidential or Highly Confidential Information was in existenc
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`during the period of his or her service or employment and foundation is established that th
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`witness was involved in the project to which the Confidential or Highly Confidential Informatio
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`relates so that it is reasonable that the witness had access to the Confidential or Highl
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`Confidential Information during the course of his or her service or employment) and thei
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`counsel, provided that the information was authored by, created by, addressed to, received by
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`signed by, or is otherwise established to have been known to the witness; but only at depositio
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`or trial;
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`(vii)
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`the Court, including clerks, court personnel, and court reporter
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`and videographers employed in connection with this action;
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`(viii) outside photocopying, imaging, data base, graphics or desig
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`services or other support services retained by outside counsel for purposes of this action; and
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`(ix)
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`other persons only upon Order of the Court for good cause show
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`or upon written stipulation of the Producing Party.
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`Case 2:13-cv-00391-ES-JAD Document 48 Filed 11/26/13 Page 10 of 21 PageID: 602
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`(b)
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`Subject to Paragraphs 10-14, Highly Confidential Information of th(
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`producing party shall be subject to the same restrictions as Confidential Information except tha
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`it may be disclosed, summarized, described, revealed or otherwise made available in whole or ir
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`part only to the persons identified in 6(a)(i)-(ii) and (iv)-(ix) and otherwise in accordance witt
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`the terms of this Order. Notwithstanding the foregoing, the specified attorneys designated by th(
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`parties in Paragraphs 6(a)(i)-(ii) shall not have access to Highly Confidential Information if the)
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`are involved, either formally or informally, for the length of this litigation plus one year after ~
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`final, non-appealable judgment in this litigation, in the preparation or prosecution of any paten
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`application that covers sodium oxybate (including compositions, methods, distribution methods
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`uses, or processes). Such involvement in the preparation or prosecution of any patent applicatior
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`includes, but is not limited to: (1) obtaining disclosure materials for new inventions anc
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`inventions under development; (2) investigating prior art relating to those inventions; (3) makin!
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`or consulting or advising in any way on strategic decisions on the type and scope of paten
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`prosecution that might be available or worth pursuing for such inventions; (4) writing, reviewing
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`editing or approving new applications or continuations-in-part of applications to cover those
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`inventions; or (5) strategically amending or surrendering claim scope during prosecution. Fo
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`the avoidance of doubt, any attorney identified in Paragraphs 6(a)(i)-(ii) who accesses Highh
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`Confidential Information shall not be involved, formally or informally, for the length of thi
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`litigation plus one year after a final, non-appealable judgment in this litigation, in paten
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`preparation and prosecution activities as set forth above. The patent prosecution bar in thi~
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`paragraph shall not apply to patent applications containing claims (either in the application a~
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`filed or as amended) that are limited to: (1) methods of treating diseases or conditions other thar
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`narcolepsy or cataplexy with administration of sodium oxybate or GHB or a salt thereof; or (2
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`non-liquid dosage formulations containing sodium oxybate or GHB or a salt thereof.
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`7.
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`Nothing in this Discovery Confidentiality Order shall prevent disclosure o
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`Confidential Information or Highly Confidential Information if the producing party consents t
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`such disclosure or if the Court, after notice to all parties, orders such disclosure.
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`8.
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`All Confidential Information and Highly Confidential Information
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`pursuant to this Order shall be used by a recipient thereof solely for the purposes of this litigatio
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`and not for any business or competitive purposes. It shall be the duty of each party and eac
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`individual having notice of this Discovery Confidentiality Order to comply with this Order fro
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`the time of such notice.
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`9.
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`By written agreement of the parties, or upon motion and order of the Court, th
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`list of individuals designated under Paragraph 6 to whom Confidential Information or Highl
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`Confidential Information may be disclosed may be modified or expanded.
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`10.
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`If a producing party seeks to protect Confidential Information or Highl
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`Confidential Information from public disclosure or use during a trial, court appearance or hearin
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`which is open to the public (a "Court Disclosure"), the producing party shall make an applicatio
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`to the Court to restrict such disclosure or use, unless consent from the receiving party i
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`previously obtained. Such application may be made at any time before the Court Disclosure o
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`within ten (10) business days after the Court Disclosure.
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`11.
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`Any party filing any document, material or information designated by another
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`party as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" shall move pursuant to Local
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`Civil Rule 5.3(c) to seal such document, material or information to prevent public disclosure.
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`The party making such a motion also shall designate any document, material or information
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`which is the subject of the motion as "confidential materials" pursuant to Local Civil Rule
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`11
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`

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`5.3(c)(3), and take appropriate action necessary to assure that such document, material or
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`information shall remain sealed.
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`Should a party fail to properly file documents or materials containing Confidential
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`Information in accordance with this Order, the Local Civil Rules or the ECF Polices, any party
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`who in good faith believes that filing under seal is required may, within ten (10) days of learning
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`of the allegedly defective filing, file a motion with the Court to request an order sealing such
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`documents or materials. Nothing in this provision relieves a party of liability for damages
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`caused by the electronic filing of Confidential Information or for damages caused by failure to
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`properly file under seal documents or materials containing Confidential Information.
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`12.
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`No person identified in Paragraph 6(a)(ii)-(iv) shall be given access
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`t
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`Confidential and/or Highly Confidential Information (if they are entitled to receive Highl
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`Confidential Information) unless such person shall first sign a Declaration of Compliance wit
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`this Order in the form attached as Exhibit A hereto, acknowledging receipt and understanding o
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`this Discovery Confidentiality Order; agree to be bound thereby; agree to use the Confidential o
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`Highly Confidential Information solely for this litigation, and not to disclose any Confidential o
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`Highly Confidential Information to any other person, firm, or concern in violation of thi
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`Discovery Confidentiality Order; and agree never to use any Confidential or Highly Confidentia
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`Information, directly or indirectly, in competition with the party that disclosed it, nor t
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`encourage or induce any other person to do so.
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`13.
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`Before any person identified in Paragraphs 6(a)(ii)-(iv) may be given access t
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`Confidential and/or Highly Confidential Information (if they are entitled to receive Highl
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`Confidential Information), the party seeking to provide such access shall deliver a copy of th
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`Declaration referred to in Paragraph 12, fully executed by such person, and written notice (b
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`12
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`facsimile or e-mail) to the attorneys for the producing party of the intention to make such
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`disclosure. In the case of a disclosure to persons identified in Paragraph 6(a)(iv) hereof, the
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`notice shall state the name and address of the person to whom disclosure is proposed and include
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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)-(iii) 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)-(iv) 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 tc
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`make the disclosure, stating the reasons for the objection. No disclosure of Confidentia
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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 tc
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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. Waive
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`as to a specific disclosure shall not constitute waiver for any subsequent disclosures. In the even
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`that a motion is made, the objecting party shall have the burden of proving that disclosure shoul<
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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 owr
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`Confidential Information or Highly Confidential Information in any manner that it consider
`
`appropriate.
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`16.
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`Nothing herein shall bar or otherwise restrict counsel from rendering advice to hi
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`or her client with respect to this litigation and, in the course thereof, referring to or relying upor
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`his or her examination of Confidential Information or Highly Confidential Information.
`
`Ir
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`rendering such advice and in otherwise communicating with his or her client, counsel shall no
`
`disclose any Confidential Information or Highly Confidential Information if such disclosun
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`would be contrary to the provisions of this Discovery Confidentiality Order.
`
`17.
`
`If a party is served with a subpoena, discovery request in another action, or am
`
`other request seeking by legal process the production of documents, things, information or othe
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`material produced to it and designated as Confidential Information or Highly Confidentia
`
`Information in this action, such party shall notify promptly the producing party so as to provide
`
`the producing party a reasonable opportunity to object to the production.
`
`18.
`
`If an additional party joins or is joined in this action, the newly joined party shal
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`not have access to Confidential Information and Highly Confidential Information until the partie!
`
`agree to a supplemental protective order governing the protection of Confidential Informatior
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`and Highly Confidential Information.
`
`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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`14
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`Case 2:13-cv-00391-ES-JAD Document 48 Filed 11/26/13 Page 15 of 21 PageID: 607
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`each party to the action will have with respect to such Confidential Information and Highl
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`Confidential Information the same obligations which that party has with respect to Confidentia
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`Information and Highly Confidential Information of another party to this action.
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`Duration of Order, Objections, Modifications
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`20.
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`This Discovery Confidentiality Order shall remain in force and effect indefinite}~
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`until modified, superseded or terminated by order of this Court, which may be entered pursuan
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`to agreement of the parties hereto. This Discovery Confidentiality Order shall continue in effec
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`after termination of this action and continue to be binding upon all persons to whom Confidentia
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`Information or Highly Confidential Information is disclosed hereunder.
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`21.
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`Upon final termination of this action (including all appeals) the receiving part
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`shall, within sixty (60) days of such termination, either return to the producing party or destro
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`all Confidential Information and Highly Confidential Information in its possession, including
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`but not limited to, information stored in electronic form. In either event, the receiving party shal
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`describe the materials returned or destroyed and certify their return or destruction, with th(
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`exception that outside counsel may retain subject to the provisions of this Discove11
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`Confidentiality Order one copy of the pleadings or other papers filed with the Court or served ir
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`the course of the litigation, deposition transcripts, deposition exhibits and the trial record.
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`22.
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`If the receiving party desires to disclose Confidential Information or Highl)
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`Confidential Information to persons not qualified to receive it under this Order or if the receivin~
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`party disagrees with a designation by the producing party, then the receiving party and the
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`producing party shall first try to resolve such dispute. If the dispute cannot be resolved, eithe
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`party may seek a ruling from the Court. Pending a determination by the Court, such information
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`shall be treated under this Order as Confidential Information or Highly Confidential Information
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`as designated by the producing party.
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`15
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`

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`Case 2:13-cv-00391-ES-JAD Document 48 Filed 11/26/13 Page 16 of 21 PageID: 608
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`No Waiver of Privileges
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`23.
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`If information that is otherwise properly subject to a claim of attorney-clien
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`privilege, attorney work product immunity or any other privilege or immunity protecting it frorr
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`discovery is inadvertently produced, the fact or circumstances of such inadvertent productior
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`shall in no way be relied upon as a ground to support any argument that the information is n<
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`longer subject to the privilege or immunity. Nor shall such inadvertent production prejudice o
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`otherwise constitute a waiver of, or estoppel as to, any claim of privilege, work produc
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`immunity or other ground for withholding production to which the producing party or othe
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`person otherwise would be entitled, either in whole or in part. If a written claim of inadverten
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`production is made pursuant to this paragraph, upon receipt of such written notice, the receivin!
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`party shall promptly return to the producing party or person (i) the inadvertently producec
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`material, (ii) any and all copies or reproductions thereof, and (iii) any and all copies o
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`summaries or notes based thereon or relating thereto, of which the receiving party is aware; anc
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`the producing party shall within three (3) business days of the return update their privilege log tc
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`include the returned document(s). If the receiving party thereafter wishes to challenge the clairr
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`that the information would have properly been subject to a privilege or immunity before it wa~
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`inadvertently produced, it must notify the producing party of its challenge within ten (1 0
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`business days of returning the inadvertent production, and move the Court for a ruling on th(
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`propriety of the claim of privilege or immunity within ten (10) business days of returning the
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`inadvertent production. As stated, such motion shall not rely upon in any manner or assert as ~
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`ground for entering such an Order the fact, circumstances, or contents of the inadverten
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`production. During the pendency of such motion, the receiving party shall make no other use o
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`disclosure of the subject material or the information contained therein. The producing party shal
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`bear the burden of proving that the inadvertently produced documents or materials are privileged
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`16
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`

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`Case 2:13-cv-00391-ES-JAD Document 48 Filed 11/26/13 Page 17 of 21 PageID: 609
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`or immune from discovery. Within five (5) business days of the receiving party's timely filin~
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`of a motion seeking an order compelling production of the inadvertently produced documents o
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`materials, the producing party shall file under seal with the Court a copy of the inadvertentl)
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`produced