Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Aurobindo Pharma Limited and
`Aurobindo Pharma USA Inc.,
`
`Defendants.
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Amneal Pharmaceuticals LLC,
`
`Defendants.
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Mylan Inc. and Mylan Pharmaceuticals
`Inc.,
`
`Defendants.
`
`Civil Action No. 14-CV-2497 (PAC)
`
`Civil Action No. 14-CV-2758 (PAC)
`
`Civil Action No. 14-CV-2647 (PAC)
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Aurobindo Pharma Limited and
`Aurobindo Pharma USA Inc.,
`
`Defendants.
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Amneal Pharmaceuticals LLC,
`
`Defendants.
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Mylan Inc. and Mylan Pharmaceuticals
`Inc.,
`
`Defendants.
`
`Civil Action No. 14-CV-2497 (PAC)
`
`Civil Action No. 14-CV-2758 (PAC)
`
`Civil Action No. 14-CV-2647 (PAC)
`
`
`
`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 2 of 27
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`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Zydus Pharmaceuticals (USA) Inc., and
`Cadila Healthcare Ltd. (dba Zydus Cadila),
`
`Defendants.
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Orient Pharma Co., Ltd.,
`
`Defendants.
`
`Kowa Company, Ltd.,
`Kowa Pharmaceuticals America, Inc., and
`Nissan Chemical Industries, Ltd.,
`
`Plaintiffs,
`
`v.
`
`Sawai USA, Inc., and
`Sawai Pharmaceutical Co., Ltd.,
`
`Defendants.
`
`Civil Action No. 14-CV-2760 (PAC)
`
`Civil Action No. 14-CV-2759 (PAC)
`
`Civil Action No. 14-CV-5575 (PAC)
`
`STIPULATION REGARDING CONFIDENTIALITY
`AND PROTECTIVE ORDER
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 3 of 27
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`WHEREAS, the Parties (as defined herein) agree that the nature of the above-referenced
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`litigations (this or the “Litigation”) will require the Parties to seek and produce documents and
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`information, and elicit deposition testimony, the disclosure of which poses a substantial risk of
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`harm to the Producing Party’s (as defined herein) legitimate business interests; and
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`WHEREAS, the Parties agree that a protective order is necessary to minimize the harm
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`flowing from the disclosure of sensitive information; and
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`WHEREAS, all parties to this Litigation, by their attorneys, hereby stipulate and agree
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`that the terms and conditions of this Stipulation Regarding Confidentiality and Protective Order
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`(the “Stipulation”) shall govern the production, exchange, disclosure and handling of Discovery
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`Material (as defined below) in this Litigation.
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`Pursuant to Federal Rule of Civil Procedure 26(c) and upon agreement of the Parties, the
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`Court finds that good cause exists for entry of a protective order to prevent unauthorized
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`disclosure and use of the Parties’ trade secrets and other confidential information during and
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`after the course of this Litigation.
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`IT IS HEREBY ORDERED THAT the Parties and any non-party agreeing to be bound
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`by this Stipulation who is subject to discovery in this Litigation are bound by the terms and
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`conditions of this Stipulation governing the production, exchange, disclosure and handling of
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`Discovery Material.
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`1.
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`Scope of Protective Order:
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`This Stipulation applies to all Discovery Material produced, exchanged or otherwise
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`disclosed by a Producing Party in connection with this Litigation. This Stipulation shall
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 4 of 27
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`apply regardless of whether such information was produced or disclosed prior to or after
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`entry of this Stipulation.
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`2.
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`Definitions:
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`(a)
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`“Confidential Material” is defined as all documents,
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`information,
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`testimony or things produced, exchanged or otherwise disclosed in this
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`Litigation, which a Party believes are, or contain, sensitive or proprietary
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`information, or other confidential
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`information, and,
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`in good faith,
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`believes is of the type of information protectable under Federal Rule of
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`Civil Procedure 26(c)(1)(G) or is required to be kept confidential by law
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`or by agreement with a third party or otherwise.
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`(b)
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`The term “Highly Confidential - Outside Attorneys’ Eyes Only” shall
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`include any Confidential Material, which the Producing Party reasonably
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`believes to be so competitively sensitive that it is entitled to extraordinary
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`protections. Such information may include, but shall not be limited to,
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`(i) non-public current and future marketing plans, market research, sales,
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`technical, financial and business strategy information, including customer
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`lists,
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`price
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`lists,
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`financial
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`projections
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`or
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`profit
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`calculations;
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`(ii) agreements, testing, research or development work with third-parties,
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`including suppliers
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`or
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`licensees;
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`(iii) Abbreviated New Drug
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`Applications (including any supplements or amendments), New Drug
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`Applications, Drug Master Files, or other non-public communications
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`with the U.S. Food and Drug Administration (“FDA”) or any other
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`regulatory agency; (iv) the names, or other information tending to reveal
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 5 of 27
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`the identities, of a Party’s suppliers, present or prospective customers, or
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`distributors or the personal information of a Party’s employees; (v) non-
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`public correspondence with the United States and foreign patent offices;
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`(vi) manufacturing information,
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`including costs of production and
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`technical notebooks, product and manufacturing specifications or similar
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`information;
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`(vii) research, development and testing information; (viii)
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`information that is already subject to a confidentiality or similar order;
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`and (ix) information the Producing Party believes is a proprietary trade
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`secret.
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`(c)
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`“Discovery Material” shall mean any document, information, testimony
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`or thing (whether in writing or verbal) produced, exchanged or otherwise
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`disclosed in this Litigation, including, for example, documents produced
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`by any Producing Party in response to a discovery request; exhibits;
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`answers to interrogatories; answers to requests for admissions; responses
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`to requests for production; subpoenas; declarations; affidavits; letters; e-
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`mail correspondence; deposition testimony or transcripts; and all copies,
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`extracts, summaries, compilations, designations, and portions thereof.
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`(d)
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`The term “Outside Counsel” means outside counsel for any Party (as
`
`defined herein),
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`including associated personnel necessary to assist
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`Outside Counsel in this Litigation, such as legal assistants, paralegals,
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`secretarial, technical assistants and clerical employees actually assisting
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`such Counsel.
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 6 of 27
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`(e)
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`The term “Parties” or “Party” means the named Plaintiffs and Defendants
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`to this Litigation.
`
`(f)
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`“Producing Party” shall mean any Party or non-party,
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`including its
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`counsel, retained experts, directors, officers, employees, or agents, which
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`produces any Discovery Material in this Litigation.
`
`(g)
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`“Receiving Party” shall mean any Party, including its counsel, retained
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`experts, directors, officers, employees, or agents, to whom any Discovery
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`Material is disclosed in this Litigation.
`
`(h)
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`Any other term not defined herein shall carry its ordinary meaning.
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`3.
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`Purpose:
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`Confidential Material
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`and Highly Confidential
`
`- Outside
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`Attorneys Eyes’ Only Material shall be used solely for purposes of and in connection
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`with this Litigation. No Confidential Material or Highly Confidential - Outside
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`Attorneys’ Eyes Only Material disclosed in this Litigation may under any circumstances
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`be disclosed or disseminated to non-parties, except as provided herein. Moreover, no
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`Confidential Material or Highly Confidential - Outside Attorneys’ Eyes Only Material
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`disclosed in this Litigation may be used for any business, commercial, regulatory,
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`competitive, personal or other purpose or in any action other than this Litigation.
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`In
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`particular, and by way of example only, Confidential Material and Highly Confidential -
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`Outside Attorneys’ Eyes Only Material disclosed in this Litigation shall not be
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`submitted to any foreign or domestic regulatory agency, including but not limited to in
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`connection with any citizen petitions to FDA. This restriction shall not bar a Producing
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`Party from submitting or otherwise using its own Confidential Material and Highly
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`Confidential – Outside Attorneys’ Eyes Only Material for any purpose.
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 7 of 27
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`4.
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`Disclosure of Confidential Material to Qualified Persons: Except with the
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`prior written consent of the Producing Party, or in accordance with the procedure set
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`forth in Paragraph 12 herein, Confidential Material may be disclosed only to the
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`following persons and to no others, including without limitation government agencies or
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`investigating bodies, except pursuant to lawful process, reasonable advance written
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`notice of which is to be provided to the Producing Party:
`
`(a)
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`Individual Outside Counsel for any Party. For purposes of this Litigation
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`only, individual Outside Counsel who review Confidential Material agree
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`that they will not: (i) be involved in Prosecution of patent applications,
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`including both foreign and U.S. applications; for the sake of clarity with
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`respect to this Stipulation only, “Prosecution” includes any reissue or
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`reexamination applications, post-grant review, and inter partes review if
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`the
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`individual Outside Counsel
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`participating
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`in
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`the
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`reissue,
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`reexamination, post-grant review or inter partes review drafts, edits or
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`amends any patent claim in such proceeding relating to pitavastatin; (ii)
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`prepares or submits FDA correspondence (including, but not limited to,
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`citizen petitions)
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`regarding approval
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`requirements for any product
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`containing pitavastatin; or
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`(iii) prepares,
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`submits or advises on
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`correspondence or any submission to the U.S. Pharmacopeia relating to a
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`monograph pertaining to pitavastatin.
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`*
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`*
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`*
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`This provision shall apply for a duration of one (1) year after the
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`conclusion of the Litigation, including any appeals to the Federal Circuit,
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 8 of 27
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`or resolution of the Litigation by settlement. Nothing in this Paragraph
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`shall be construed as a waiver of any other provision or obligation under
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`this Stipulation, including but not limited to the provisions restricting the
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`use and disclosure of Confidential Material.
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`(b)
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`For each Party, up to three (3) in-house counsel or in-house personnel
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`(who are not engaged in competitive decision-making related to products
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`containing pitavastatin) who are actively engaged in the prosecution or
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`defense of this Litigation. For purposes of this Litigation only, in-house
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`counsel or in-house personnel who review or receive Confidential
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`Material agree that they are not and will not be involved in:
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`(i)
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`the Prosecution of patent applications,
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`including both
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`foreign and U.S. applications and any reissue or reexamination
`
`applications, relating to pitavastatin for the duration of one (1)
`
`year after the conclusion of the Litigation, including any appeals
`
`to the Federal Circuit, or
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`resolution of
`
`the Litigation by
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`settlement; and (ii) the preparation or submission of any FDA
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`correspondence (including, but not limited to citizens petitions)
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`regarding approval
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`requirements for any product containing
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`pitavastatin for the duration of one (1) year after the conclusion of
`
`the Litigation, including any appeals to the Federal Circuit, or
`
`resolution of the Litigation by settlement.
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`(c)
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`Vendors retained by Outside Counsel to translate, copy, image, catalog,
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`or otherwise prepare or organize documents or things. For purposes of
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 9 of 27
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`this Stipulation, the phrase “vendors retained by Outside Counsel” shall
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`not include any officer, director, or employee of a Party, or any person
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`regularly employed by a Party;
`
`(d)
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`Any interpreters or any other reports or typists translating, recording or
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`transcribing testimony;
`
`(e)
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`Any translators retained for purposes of translating any documents or
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`materials in this Litigation;
`
`(f)
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`Persons providing graphics or design services for purposes of preparing
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`demonstratives or other exhibits or materials in this Litigation and non-
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`technical jury or trial consulting services.
`
`(g)
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`Outside experts and consultants retained by a Party or Outside Counsel
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`for the purpose of preparing or assisting in this Litigation, and their
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`respective clerks and employees involved in assisting them in this
`
`Litigation,
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`to the extent deemed necessary by Outside Counsel.
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`Disclosure to an outside expert or consultant, however, shall be subject to
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`the terms of Paragraph 7 below;
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`(h)
`
`(i)
`
`(j)
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`The Court and Court personnel, including stenographic reporters;
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`Contract attorneys retained by any Party or Outside Counsel;
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`Confidential Information may be disclosed to a witness in the course of
`
`his or her deposition, hearing or trial testimony in this Litigation who is
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`not authorized to receive Confidential Information under the terms of this
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`Stipulation,
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`so long as
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`such examination concerns Confidential
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`Information that the witness previously had access to or knowledge of, as
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 10 of 27
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`demonstrated by foundation testimony during a deposition, hearing or
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`trial. This Stipulation shall not prevent counsel from examining a
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`witness in a good faith effort to determine whether he or she previously
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`had access to such Confidential Information.
`
`(k)
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`Any person indicated on the face of the document to be its originator or
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`author or a recipient thereof, or any witness designated by a Party under
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`Federal Rule of Civil Procedure 30(b)(6) who, based on the face of the
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`document, produced, authored or received the document; and
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`(l)
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`Any other person, either with the prior written consent of the Producing
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`Party or pursuant to an order of the Court.
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`5.
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`Disclosure of Highly Confidential - Outside Attorneys’ Eyes Only Material
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`to Qualified Persons: Except with the prior written consent of the Producing Party, or
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`in accordance with the procedure set forth in Paragraph 12, Highly Confidential -
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`Outside Attorneys’ Eyes Only Material may be disclosed only to the persons identified
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`above in Paragraphs 4(a) and 4(c)-(l) herein who meet the requirements set forth in this
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`Stipulation.
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`6.
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`Execution of Stipulation to be Bound: The in-house counsel or in-house
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`personnel described in Paragraph 4(b) above shall have access to the Confidential
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`Material of another Party or non-party, as permitted under the terms of this Stipulation,
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`only after they have been made aware of the provisions of this Stipulation and have
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`manifested their assent to be bound thereby by signing a copy of the Acknowledgment
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`annexed hereto as Exhibit A. Executed copies of Acknowledgments shall be maintained
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 11 of 27
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`by the Outside Counsel who discloses Confidential Material to the in-house counsel or
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`in-house personnel who has signed the Acknowledgment.
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`7.
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`Requirements for Disclosure to Experts: Before disclosing Confidential
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`Material or Highly Confidential - Outside Attorneys’ Eyes Only Material to an outside
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`expert or consultant pursuant to Paragraphs 4(g) or 5 above, the Party retaining the
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`expert or consultant shall provide the other Parties with a copy of the Acknowledgment,
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`as executed by the expert or consultant and a curriculum vitae or current resume of the
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`expert or consultant, and shall further identify any relationship to the Parties, which
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`disclosure may be satisfied by information in the expert’s or consultant’s curriculum
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`vitae or resume (collectively, the “Background Information”).
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`If a Party has a good
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`faith basis for believing it would be harmed by the proposed disclosure to the expert or
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`consultant, within ten (10) days of the receipt of such Background Information, the
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`objecting Party may object in writing to the expert or consultant having access to its
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`Confidential Material or Highly Confidential - Outside Attorneys’ Eyes Only Material.
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`The objection must state with particularity the basis for the objection. If the Parties are
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`unable to reach an agreement regarding such disclosure,
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`the Party objecting to
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`disclosure may, within ten (10) days, request this Court to issue an order barring such
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`disclosure. The objecting Party shall have the burden of showing why the proposed
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`expert or consultant to whom a Party proposes to disclose Confidential Material or
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`Highly Confidential – Outside Attorneys’ Eyes Only Material should not have access to
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`such material.
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`If an objection is timely made, no disclosure shall be made to the
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`proposed expert or consultant prior to written consent of the Producing Party or by order
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`of the Court granting access.
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`8.
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`Format of Designations: The Parties shall designate Confidential Material or
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`Highly Confidential - Outside Attorneys’ Eyes Only Material as follows:
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`(a)
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`In the case of documents, designation shall be made by placing the
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`following legend on each page of any such document prior to production:
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`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE
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`ATTORNEYS EYES’ ONLY” or a similar legend identifying material as
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`Confidential or Highly Confidential - Outside Attorneys Eyes’ Only. For
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`pleadings and written discovery, such marking need only appear on the
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`first page of the document. Any Confidential or Highly Confidential -
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`Outside Attorneys Eyes’ Only Information not reduced to documentary
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`or physical form or that cannot be conveniently labeled shall be so
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`designated by a Party by serving a written notification on the Receiving
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`Party.
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`(b)
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`In the case of depositions, counsel for any Party or any deponent in this
`
`action, who in good faith reasonably believes that any portion of his or
`
`her testimony discloses any sensitive information of a non-public nature,
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`may designate such portions as Confidential Material or Highly
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`Confidential - Outside Attorneys’ Eyes Only Material by advising the
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`reporter of the designation. The reporter shall designate the portion of
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`the transcript (including exhibits) that contains Confidential Material or
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`Highly Confidential - Outside Attorneys’ Eyes Only Material by placing
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`the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`OUTSIDE ATTORNEYS’ EYES ONLY” on each page of the transcript
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`containing such material and shall separately bind such portions of the
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`transcript indicating that Confidential Material or Highly Confidential -
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`Outside Attorneys’ Eyes Only Material is contained therein.
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`(c)
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`Any Party may designate documents used at depositions or portions of
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`deposition transcripts as containing Confidential Material or Highly
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`Confidential - Outside Attorneys’ Eyes Only Material even if not initially
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`marked as such in accordance with the terms of this Stipulation by so
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`advising counsel for each Party in writing within fifteen (15) days of the
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`receipt of the document or the final deposition transcript, which he, she,
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`or it wishes to designate as Confidential or Highly Confidential – Outside
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`Attorneys’ Eyes Only. Thereafter each such document or transcript
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`portion shall be treated in accordance with the terms of this Stipulation.
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`(d)
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`In the event that non-parties produce documents or provide information,
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`including deposition testimony, in connection with the Litigation, the
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`parties to this proceeding agree that production of such documents or
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`information shall be made subject to the provisions of this Stipulation,
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`and that the non-parties producing such documents and information shall
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`be treated as Producing Parties within the terms of this Stipulation.
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`9.
`
`Court Filings and Proceedings Involving “Confidential” or “Highly
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`Confidential-Attorneys’ Eyes Only Material: All documents, including pleadings,
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`motions and other papers containing Confidential Material or Highly Confidential -
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`Attorneys’ Eyes Only Material shall not be filed with the Court unless filed under seal in
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`accordance with the Court’s Local Rules and CM/ECF procedures or otherwise pursuant
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`to Order of the Court or by agreement by the Producing Party.
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`10.
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`Preservation of Defendants’ Confidential and Highly Confidential
`
`-
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`Outside Attorneys’ Eyes Only Material:
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`Plaintiffs
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`shall not disclose any
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`“Confidential” or “Highly Confidential - Outside Attorneys’ Eyes Only” Material of one
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`Defendant to any other Defendant in this Litigation without written consent from the
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`Producing Party.
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`Plaintiffs shall further not use any “Confidential” or “Highly
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`Confidential - Outside Attorneys’ Eyes Only” Material disclosed by one Defendant in
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`this Litigation during a fact witness deposition or cross examination of another
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`Defendant unless otherwise permitted under this Stipulation.
`
`11.
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`Non-Parties: If a Party seeks discovery from a non-party, either the non-party
`
`or any Party may invoke the terms and protections of this Stipulation with respect to any
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`Confidential Information provided by the non-party by so advising all Receiving Parties
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`in this Litigation in writing. Any such non-party shall have standing to appear in this
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`Litigation to file motions and oppose motions, as necessary, to protect such non-party’s
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`rights in its Confidential Information.
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`12.
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`Challenges to Designations: A Party shall not be obligated to challenge the
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`propriety of a Confidential Material or Highly Confidential - Outside Attorneys’ Eyes
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`Only Material designation made by another Party at the time the designation is made,
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`and failure to do so shall not preclude a subsequent challenge thereto. A Party may
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`challenge such designation by sending written notice to the Producing Party. The
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`Parties shall attempt to resolve any challenge in good faith on an informal basis. If the
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`challenge cannot be resolved in that manner, any Party may apply for an appropriate
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`ruling from the Court. In the event that a Party challenges such designation, such Party
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`shall provide to the other Party reasonable prior written notice of its motion or
`
`application. If the challenging Party seeks relief from the Court, until the Court rules on
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`the requested relief, the Discovery Material shall be treated as Confidential Material or
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`Highly Confidential - Outside Attorneys’ Eyes Only Material, as the case may be. The
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`burden of proving that
`
`information has been properly designated as Confidential
`
`Material or Highly Confidential - Outside Attorneys’ Eyes Only Material shall be on the
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`Producing Party making such designation.
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`13.
`
`No Waiver of Designation: Material produced without
`
`the designation
`
`“Confidential Material” or “Highly Confidential - Outside Attorneys’ Eyes Only
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`Material” may be so designated subsequent
`
`to production if the Producing Party
`
`provides replacement materials bearing an appropriate designation and notifies the
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`Receiving Party promptly, and no later than fourteen (14) days, after becoming aware
`
`that the Producing Party failed to make such designation at the time of production.
`
`If
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`Discovery Material is subsequently designated under this Paragraph, the Receiving
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`Party shall collect any copies of the undesignated version that it has in its possession
`
`(including that it has provided to any outside experts or consultants or any other person)
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`and destroy the same, except that any copy containing the Receiving Party’s work
`
`product (including that of any outsider expert or consultant) may be retained by such
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`person but not disseminated to any other person, and shall have the corresponding
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`designation permanently affixed to said copy.
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`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 16 of 27
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`14.
`
`Inadvertent Production of Privileged or Immune Material: If information,
`
`documents or any tangible item subject to a claim of attorney-client privilege, work
`
`product
`
`immunity or any other applicable privilege,
`
`immunity or protection is
`
`inadvertently or mistakenly produced, such production shall in no way prejudice or
`
`otherwise constitute a waiver of, or estoppel as to, any claim of privilege, work product
`
`immunity or other protection for such information.
`
`If a Party has inadvertently or
`
`mistakenly produced information, documents or any tangible item subject to claim of
`
`privilege, immunity or other protection, upon request made by the Producing Party, the
`
`information, document or tangible item for which a claim of inadvertent production is
`
`made shall be returned to the Producing Party within seven (7) business days of such
`
`request, and all copies of any returned document that may have been made shall be
`
`destroyed. The Party returning such information, document or tangible item may move
`
`the Court for an order compelling production of such information if it believes that such
`
`material is not properly being withheld on the basis of an applicable privilege, immunity
`
`or protection. In the instance the Receiving Party seeks such an order from the Court to
`
`compel production, one copy of each document in question may be maintained by
`
`Outside Counsel for the Receiving Party until entry of an order by the Court concerning
`
`the applicability or waiver of any claimed privilege, immunity or other protection.
`
`Outside Counsel for the Receiving Party shall only use the one retained copy for
`
`purposes of preparing the subject motion or application and matters related thereto. For
`
`purposes of this Paragraph, it shall be irrelevant which Party initially discovers the
`
`inadvertently- or mistakenly-produced information, documents or tangible item that is
`
`-16-
`
`
`
`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 17 of 27
`
`otherwise properly subject
`
`to a claim of attorney-client privilege, work product
`
`immunity or any other applicable privilege, immunity or protection.
`
`15.
`
`Use of Confidential Material or Highly Confidential - Outside Attorneys’
`
`Eyes Only Material in Court: In the event that Confidential Material or Highly
`
`Confidential - Outside Attorneys’ Eyes Only Material is used in any Court hearing or
`
`other proceeding, it shall not lose its Confidential Material or Highly Confidential -
`
`Outside Attorneys’ Eyes Only Material status through such use, and the Parties shall
`
`take all steps reasonably required to protect its confidentiality during such use.
`
`16.
`
`Depositions: Counsel for any Party shall have the right
`
`to exclude from
`
`depositions any person, other than the deponent, the court reporter and any interpreter
`
`retained by any Party, who is not authorized under this Stipulation to receive
`
`Confidential Material or Highly Confidential - Outside Attorneys’ Eyes Only Material.
`
`Such exclusion shall apply only during periods of examination or testimony directed to
`
`or comprising information which has been designated as Confidential Material or
`
`Highly Confidential - Outside Attorneys’ Eyes Only Material.
`
`17.
`
`Materials Excluded from Discovery:
`
`The following materials will be
`
`excluded from discovery in this Litigation, consistent with Federal Rule of Civil
`
`Procedure 26(b): expert witnesses’ notes, drafts and communications with counsel, with
`
`the exception that the Parties shall be entitled to seek discovery to identify facts or data
`
`that the Party’s counsel provided and upon which the expert relied in forming his or her
`
`opinions, or to identify assumptions that the Party’s counsel provided and upon which
`
`the expert relied in forming his or her opinions.
`
`-17-
`
`
`
`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 18 of 27
`
`18.
`
`End of Litigation Procedures: Except as otherwise permitted in this
`
`Paragraph, within sixty (60) days of the final resolution of this Litigation, Outside
`
`Counsel for the Receiving Party shall return to Outside Counsel for the Producing Party
`
`all Discovery Material stored in any form, including all copies thereof, or destroy the
`
`Discovery Material and confirm in writing to Outside Counsel for the Producing Party
`
`that all such documents have been destroyed. However, as an exception to this
`
`requirement, Outside Counsel shall be permitted to retain copies of documents filed with
`
`the Court, transcripts, and attorney work product, which shall remain subject to this
`
`Stipulation.
`
`19.
`
`Reservation of Rights: By this Stipulation, no Party waives any right it may
`
`have to object to any or all discovery requests on any applicable grounds or to object to
`
`the admission on any applicable grounds of any discovery materials as evidence at any
`
`trial or hearing. In any proceeding concerning the confidential and proprietary nature of
`
`Discovery Material a Party is seeking to protect from disclosure, the Parties shall not use
`
`production under this Stipulation as ground for an argument that such discovery material
`
`is not confidential or proprietary.
`
`20.
`
`Modification: Nothing in this Stipulation shall prevent any Party from seeking
`
`to modify or supplement the Stipulation. Any request to modify the Stipulation must be
`
`in writing. Each Party hereto further reserves the right to apply to the Court for
`
`protection pursuant to, relief from any or all of the provisions of, or protection in
`
`addition to that provided by, this Stipulation.
`
`-18-
`
`
`
`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 19 of 27
`
`21.
`
`Duration of Stipulation: Absent written permission of the Disclosing Party, or
`
`order of the Court, the provisions of this Stipulation shall continue to be binding after
`
`the conclusion of this Litigation. The Court expressly retains jurisdiction to enforce the
`
`provisions of this Order following the final resolution of the Litigation.
`
`22.
`
`Miscellaneous:
`
`(a)
`
`To the extent that any Party has produced any Discovery Material prior to
`
`the entry of this Stipulation,
`
`the Producing Party may retroactively
`
`designate such material as Confidential Material or Highly Confidential -
`
`Outside Attorneys’ Eyes Only Material by placing the appropriate legend
`
`on such Material and providing copies of the material bearing such
`
`legends to the Receiving Party to replace non-designated copies of the
`
`Material previously produced. Any document already produced, which
`
`bears such a legend, shall be deemed produced pursuant
`
`to this
`
`Stipulation.
`
`(b)
`
`Nothing in this Stipulation shall prevent or otherwise restrict any counsel
`
`from rendering advice to his or her client and, in the course thereof,
`
`relying generally on his or her examination of documents designated as
`
`Confidential Material or Highly Confidential - Outside Attorneys’ Eyes
`
`Only Material; provided, however, that in rendering such advice and
`
`otherwise communicating with such client, counsel shall not make
`
`specific disclosure of the contents of any document so designated.
`
`Except as otherwise provided herein, nothing in this Stipulation shall be
`
`deemed a waiver of any right any party otherwise might have under the
`
`-19-
`
`
`
`Case 1:14-cv-02758-PAC Document 44 Filed 12/18/14 Page 20 of 27
`
`Federal Rules of Civil Procedure, any applicable Local Rule or under the
`
`doctrines of attorney-client privilege, or work product protection or any
`
`other applicable privilege or immunity.
`
`(c)
`
`In the event a Party has legally obtained documents or information
`
`through a method other than production pursuant to this Stipulation,
`
`nothing in this Stipulation shall limit the use by that Party of such
`
`documents or
`
`information, even if copies of such documents or
`
`information have been designated as Confidential Material or Highly
`
`Confidential - Outside Attorneys’ Eyes Only Material by another Party.
`
`(d)
`
`Nothing in this Stipulation shall prevent a Producing Party from using or
`
`disclosing its own information as it deems appropriate. Any such
`
`disclosure by a Producing Party shall not
`
`impair
`
`the proprietary
`
`obligations imposed upon all Parties subject to this Stipulation.
`
`(e)
`
`This Stipulation binds the parties to treat as confidential documents so
`
`classified.
`
`The Court, however, has not reviewed the documents
`
`referenced herein; therefore by so ordering this Stipulation, the Court
`
`makes no finding as to whether the documents are confidential. That
`
`finding will be made, if ever, upon a document-by-document review.
`
`(f)
`
`This Stipulation may be executed in counterparts, and signatures obtained
`
`via facsimile or other electronic means shall have the full force and effect
`
`of original signat
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