`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 1 of 27
`
`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.
`
`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #: _________________
`DATE FILED: December 19, 2014
`
`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-05575-PAC Document 56 Filed 12/19/14 Page 2 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 2 of 27
`
`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
`
`-2-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 3 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 3 of 27
`
`WHEREAS, the Parties (as defined herein) agree that the nature of the above-referenced
`
`litigations (this or the “Litigation”) will require the Parties to seek and produce documents and
`
`information, and elicit deposition testimony, the disclosure of which poses a substantial risk of
`
`harm to the Producing Party’s (as defined herein) legitimate business interests; and
`
`WHEREAS, the Parties agree that a protective order is necessary to minimize the harm
`
`flowing from the disclosure of sensitive information; and
`
`WHEREAS, all parties to this Litigation, by their attorneys, hereby stipulate and agree
`
`that the terms and conditions of this Stipulation Regarding Confidentiality and Protective Order
`
`(the “Stipulation”) shall govern the production, exchange, disclosure and handling of Discovery
`
`Material (as defined below) in this Litigation.
`
`Pursuant to Federal Rule of Civil Procedure 26(c) and upon agreement of the Parties, the
`
`Court finds that good cause exists for entry of a protective order to prevent unauthorized
`
`disclosure and use of the Parties’ trade secrets and other confidential information during and
`
`after the course of this Litigation.
`
`IT IS HEREBY ORDERED THAT the Parties and any non-party agreeing to be bound
`
`by this Stipulation who is subject to discovery in this Litigation are bound by the terms and
`
`conditions of this Stipulation governing the production, exchange, disclosure and handling of
`
`Discovery Material.
`
`1.
`
`Scope of Protective Order:
`
`This Stipulation applies to all Discovery Material produced, exchanged or otherwise
`
`disclosed by a Producing Party in connection with this Litigation. This Stipulation shall
`
`-3-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 4 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 4 of 27
`
`apply regardless of whether such information was produced or disclosed prior to or after
`
`entry of this Stipulation.
`
`2.
`
`Definitions:
`
`(a)
`
`“Confidential Material” is defined as all documents,
`
`information,
`
`testimony or things produced, exchanged or otherwise disclosed in this
`
`Litigation, which a Party believes are, or contain, sensitive or proprietary
`
`information, or other confidential
`
`information, and,
`
`in good faith,
`
`believes is of the type of information protectable under Federal Rule of
`
`Civil Procedure 26(c)(1)(G) or is required to be kept confidential by law
`
`or by agreement with a third party or otherwise.
`
`(b)
`
`The term “Highly Confidential - Outside Attorneys’ Eyes Only” shall
`
`include any Confidential Material, which the Producing Party reasonably
`
`believes to be so competitively sensitive that it is entitled to extraordinary
`
`protections. Such information may include, but shall not be limited to,
`
`(i) non-public current and future marketing plans, market research, sales,
`
`technical, financial and business strategy information, including customer
`
`lists,
`
`price
`
`lists,
`
`financial
`
`projections
`
`or
`
`profit
`
`calculations;
`
`(ii) agreements, testing, research or development work with third-parties,
`
`including suppliers
`
`or
`
`licensees;
`
`(iii) Abbreviated New Drug
`
`Applications (including any supplements or amendments), New Drug
`
`Applications, Drug Master Files, or other non-public communications
`
`with the U.S. Food and Drug Administration (“FDA”) or any other
`
`regulatory agency; (iv) the names, or other information tending to reveal
`
`-4-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 5 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 5 of 27
`
`the identities, of a Party’s suppliers, present or prospective customers, or
`
`distributors or the personal information of a Party’s employees; (v) non-
`
`public correspondence with the United States and foreign patent offices;
`
`(vi) manufacturing information,
`
`including costs of production and
`
`technical notebooks, product and manufacturing specifications or similar
`
`information;
`
`(vii) research, development and testing information; (viii)
`
`information that is already subject to a confidentiality or similar order;
`
`and (ix) information the Producing Party believes is a proprietary trade
`
`secret.
`
`(c)
`
`“Discovery Material” shall mean any document, information, testimony
`
`or thing (whether in writing or verbal) produced, exchanged or otherwise
`
`disclosed in this Litigation, including, for example, documents produced
`
`by any Producing Party in response to a discovery request; exhibits;
`
`answers to interrogatories; answers to requests for admissions; responses
`
`to requests for production; subpoenas; declarations; affidavits; letters; e-
`
`mail correspondence; deposition testimony or transcripts; and all copies,
`
`extracts, summaries, compilations, designations, and portions thereof.
`
`(d)
`
`The term “Outside Counsel” means outside counsel for any Party (as
`
`defined herein),
`
`including associated personnel necessary to assist
`
`Outside Counsel in this Litigation, such as legal assistants, paralegals,
`
`secretarial, technical assistants and clerical employees actually assisting
`
`such Counsel.
`
`-5-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 6 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 6 of 27
`
`(e)
`
`The term “Parties” or “Party” means the named Plaintiffs and Defendants
`
`to this Litigation.
`
`(f)
`
`“Producing Party” shall mean any Party or non-party,
`
`including its
`
`counsel, retained experts, directors, officers, employees, or agents, which
`
`produces any Discovery Material in this Litigation.
`
`(g)
`
`“Receiving Party” shall mean any Party, including its counsel, retained
`
`experts, directors, officers, employees, or agents, to whom any Discovery
`
`Material is disclosed in this Litigation.
`
`(h)
`
`Any other term not defined herein shall carry its ordinary meaning.
`
`3.
`
`Purpose:
`
`Confidential Material
`
`and Highly Confidential
`
`- Outside
`
`Attorneys Eyes’ Only Material shall be used solely for purposes of and in connection
`
`with this Litigation. No Confidential Material or Highly Confidential - Outside
`
`Attorneys’ Eyes Only Material disclosed in this Litigation may under any circumstances
`
`be disclosed or disseminated to non-parties, except as provided herein. Moreover, no
`
`Confidential Material or Highly Confidential - Outside Attorneys’ Eyes Only Material
`
`disclosed in this Litigation may be used for any business, commercial, regulatory,
`
`competitive, personal or other purpose or in any action other than this Litigation.
`
`In
`
`particular, and by way of example only, Confidential Material and Highly Confidential -
`
`Outside Attorneys’ Eyes Only Material disclosed in this Litigation shall not be
`
`submitted to any foreign or domestic regulatory agency, including but not limited to in
`
`connection with any citizen petitions to FDA. This restriction shall not bar a Producing
`
`Party from submitting or otherwise using its own Confidential Material and Highly
`
`Confidential – Outside Attorneys’ Eyes Only Material for any purpose.
`
`-6-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 7 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 7 of 27
`
`4.
`
`Disclosure of Confidential Material to Qualified Persons: Except with the
`
`prior written consent of the Producing Party, or in accordance with the procedure set
`
`forth in Paragraph 12 herein, Confidential Material may be disclosed only to the
`
`following persons and to no others, including without limitation government agencies or
`
`investigating bodies, except pursuant to lawful process, reasonable advance written
`
`notice of which is to be provided to the Producing Party:
`
`(a)
`
`Individual Outside Counsel for any Party. For purposes of this Litigation
`
`only, individual Outside Counsel who review Confidential Material agree
`
`that they will not: (i) be involved in Prosecution of patent applications,
`
`including both foreign and U.S. applications; for the sake of clarity with
`
`respect to this Stipulation only, “Prosecution” includes any reissue or
`
`reexamination applications, post-grant review, and inter partes review if
`
`the
`
`individual Outside Counsel
`
`participating
`
`in
`
`the
`
`reissue,
`
`reexamination, post-grant review or inter partes review drafts, edits or
`
`amends any patent claim in such proceeding relating to pitavastatin; (ii)
`
`prepares or submits FDA correspondence (including, but not limited to,
`
`citizen petitions)
`
`regarding approval
`
`requirements for any product
`
`containing pitavastatin; or
`
`(iii) prepares,
`
`submits or advises on
`
`correspondence or any submission to the U.S. Pharmacopeia relating to a
`
`monograph pertaining to pitavastatin.
`
`*
`
`*
`
`*
`
`This provision shall apply for a duration of one (1) year after the
`
`conclusion of the Litigation, including any appeals to the Federal Circuit,
`
`-7-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 8 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 8 of 27
`
`or resolution of the Litigation by settlement. Nothing in this Paragraph
`
`shall be construed as a waiver of any other provision or obligation under
`
`this Stipulation, including but not limited to the provisions restricting the
`
`use and disclosure of Confidential Material.
`
`(b)
`
`For each Party, up to three (3) in-house counsel or in-house personnel
`
`(who are not engaged in competitive decision-making related to products
`
`containing pitavastatin) who are actively engaged in the prosecution or
`
`defense of this Litigation. For purposes of this Litigation only, in-house
`
`counsel or in-house personnel who review or receive Confidential
`
`Material agree that they are not and will not be involved in:
`
`(i)
`
`the Prosecution of patent applications,
`
`including both
`
`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
`
`resolution of
`
`the Litigation by
`
`settlement; and (ii) the preparation or submission of any FDA
`
`correspondence (including, but not limited to citizens petitions)
`
`regarding approval
`
`requirements for any product containing
`
`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.
`
`(c)
`
`Vendors retained by Outside Counsel to translate, copy, image, catalog,
`
`or otherwise prepare or organize documents or things. For purposes of
`
`-8-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 9 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 9 of 27
`
`this Stipulation, the phrase “vendors retained by Outside Counsel” shall
`
`not include any officer, director, or employee of a Party, or any person
`
`regularly employed by a Party;
`
`(d)
`
`Any interpreters or any other reports or typists translating, recording or
`
`transcribing testimony;
`
`(e)
`
`Any translators retained for purposes of translating any documents or
`
`materials in this Litigation;
`
`(f)
`
`Persons providing graphics or design services for purposes of preparing
`
`demonstratives or other exhibits or materials in this Litigation and non-
`
`technical jury or trial consulting services.
`
`(g)
`
`Outside experts and consultants retained by a Party or Outside Counsel
`
`for the purpose of preparing or assisting in this Litigation, and their
`
`respective clerks and employees involved in assisting them in this
`
`Litigation,
`
`to the extent deemed necessary by Outside Counsel.
`
`Disclosure to an outside expert or consultant, however, shall be subject to
`
`the terms of Paragraph 7 below;
`
`(h)
`
`(i)
`
`(j)
`
`The Court and Court personnel, including stenographic reporters;
`
`Contract attorneys retained by any Party or Outside Counsel;
`
`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
`
`not authorized to receive Confidential Information under the terms of this
`
`Stipulation,
`
`so long as
`
`such examination concerns Confidential
`
`Information that the witness previously had access to or knowledge of, as
`
`-9-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 10 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 10 of 27
`
`demonstrated by foundation testimony during a deposition, hearing or
`
`trial. This Stipulation shall not prevent counsel from examining a
`
`witness in a good faith effort to determine whether he or she previously
`
`had access to such Confidential Information.
`
`(k)
`
`Any person indicated on the face of the document to be its originator or
`
`author or a recipient thereof, or any witness designated by a Party under
`
`Federal Rule of Civil Procedure 30(b)(6) who, based on the face of the
`
`document, produced, authored or received the document; and
`
`(l)
`
`Any other person, either with the prior written consent of the Producing
`
`Party or pursuant to an order of the Court.
`
`5.
`
`Disclosure of Highly Confidential - Outside Attorneys’ Eyes Only Material
`
`to Qualified Persons: Except with the prior written consent of the Producing Party, or
`
`in accordance with the procedure set forth in Paragraph 12, Highly Confidential -
`
`Outside Attorneys’ Eyes Only Material may be disclosed only to the persons identified
`
`above in Paragraphs 4(a) and 4(c)-(l) herein who meet the requirements set forth in this
`
`Stipulation.
`
`6.
`
`Execution of Stipulation to be Bound: The in-house counsel or in-house
`
`personnel described in Paragraph 4(b) above shall have access to the Confidential
`
`Material of another Party or non-party, as permitted under the terms of this Stipulation,
`
`only after they have been made aware of the provisions of this Stipulation and have
`
`manifested their assent to be bound thereby by signing a copy of the Acknowledgment
`
`annexed hereto as Exhibit A. Executed copies of Acknowledgments shall be maintained
`
`-10-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 11 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 11 of 27
`
`by the Outside Counsel who discloses Confidential Material to the in-house counsel or
`
`in-house personnel who has signed the Acknowledgment.
`
`7.
`
`Requirements for Disclosure to Experts: Before disclosing Confidential
`
`Material or Highly Confidential - Outside Attorneys’ Eyes Only Material to an outside
`
`expert or consultant pursuant to Paragraphs 4(g) or 5 above, the Party retaining the
`
`expert or consultant shall provide the other Parties with a copy of the Acknowledgment,
`
`as executed by the expert or consultant and a curriculum vitae or current resume of the
`
`expert or consultant, and shall further identify any relationship to the Parties, which
`
`disclosure may be satisfied by information in the expert’s or consultant’s curriculum
`
`vitae or resume (collectively, the “Background Information”).
`
`If a Party has a good
`
`faith basis for believing it would be harmed by the proposed disclosure to the expert or
`
`consultant, within ten (10) days of the receipt of such Background Information, the
`
`objecting Party may object in writing to the expert or consultant having access to its
`
`Confidential Material or Highly Confidential - Outside Attorneys’ Eyes Only Material.
`
`The objection must state with particularity the basis for the objection. If the Parties are
`
`unable to reach an agreement regarding such disclosure,
`
`the Party objecting to
`
`disclosure may, within ten (10) days, request this Court to issue an order barring such
`
`disclosure. The objecting Party shall have the burden of showing why the proposed
`
`expert or consultant to whom a Party proposes to disclose Confidential Material or
`
`Highly Confidential – Outside Attorneys’ Eyes Only Material should not have access to
`
`such material.
`
`If an objection is timely made, no disclosure shall be made to the
`
`proposed expert or consultant prior to written consent of the Producing Party or by order
`
`of the Court granting access.
`
`-11-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 12 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 12 of 27
`
`8.
`
`Format of Designations: The Parties shall designate Confidential Material or
`
`Highly Confidential - Outside Attorneys’ Eyes Only Material as follows:
`
`(a)
`
`In the case of documents, designation shall be made by placing the
`
`following legend on each page of any such document prior to production:
`
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE
`
`ATTORNEYS EYES’ ONLY” or a similar legend identifying material as
`
`Confidential or Highly Confidential - Outside Attorneys Eyes’ Only. For
`
`pleadings and written discovery, such marking need only appear on the
`
`first page of the document. Any Confidential or Highly Confidential -
`
`Outside Attorneys Eyes’ Only Information not reduced to documentary
`
`or physical form or that cannot be conveniently labeled shall be so
`
`designated by a Party by serving a written notification on the Receiving
`
`Party.
`
`(b)
`
`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,
`
`may designate such portions as Confidential Material or Highly
`
`Confidential - Outside Attorneys’ Eyes Only Material by advising the
`
`reporter of the designation. The reporter shall designate the portion of
`
`the transcript (including exhibits) that contains Confidential Material or
`
`Highly Confidential - Outside Attorneys’ Eyes Only Material by placing
`
`the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
`
`OUTSIDE ATTORNEYS’ EYES ONLY” on each page of the transcript
`
`-12-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 13 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 13 of 27
`
`containing such material and shall separately bind such portions of the
`
`transcript indicating that Confidential Material or Highly Confidential -
`
`Outside Attorneys’ Eyes Only Material is contained therein.
`
`(c)
`
`Any Party may designate documents used at depositions or portions of
`
`deposition transcripts as containing Confidential Material or Highly
`
`Confidential - Outside Attorneys’ Eyes Only Material even if not initially
`
`marked as such in accordance with the terms of this Stipulation by so
`
`advising counsel for each Party in writing within fifteen (15) days of the
`
`receipt of the document or the final deposition transcript, which he, she,
`
`or it wishes to designate as Confidential or Highly Confidential – Outside
`
`Attorneys’ Eyes Only. Thereafter each such document or transcript
`
`portion shall be treated in accordance with the terms of this Stipulation.
`
`(d)
`
`In the event that non-parties produce documents or provide information,
`
`including deposition testimony, in connection with the Litigation, the
`
`parties to this proceeding agree that production of such documents or
`
`information shall be made subject to the provisions of this Stipulation,
`
`and that the non-parties producing such documents and information shall
`
`be treated as Producing Parties within the terms of this Stipulation.
`
`9.
`
`Court Filings and Proceedings Involving “Confidential” or “Highly
`
`Confidential-Attorneys’ Eyes Only Material: All documents, including pleadings,
`
`motions and other papers containing Confidential Material or Highly Confidential -
`
`Attorneys’ Eyes Only Material shall not be filed with the Court unless filed under seal in
`
`-13-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 14 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 14 of 27
`
`accordance with the Court’s Local Rules and CM/ECF procedures or otherwise pursuant
`
`to Order of the Court or by agreement by the Producing Party.
`
`10.
`
`Preservation of Defendants’ Confidential and Highly Confidential
`
`-
`
`Outside Attorneys’ Eyes Only Material:
`
`Plaintiffs
`
`shall not disclose any
`
`“Confidential” or “Highly Confidential - Outside Attorneys’ Eyes Only” Material of one
`
`Defendant to any other Defendant in this Litigation without written consent from the
`
`Producing Party.
`
`Plaintiffs shall further not use any “Confidential” or “Highly
`
`Confidential - Outside Attorneys’ Eyes Only” Material disclosed by one Defendant in
`
`this Litigation during a fact witness deposition or cross examination of another
`
`Defendant unless otherwise permitted under this Stipulation.
`
`11.
`
`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
`
`Confidential Information provided by the non-party by so advising all Receiving Parties
`
`in this Litigation in writing. Any such non-party shall have standing to appear in this
`
`Litigation to file motions and oppose motions, as necessary, to protect such non-party’s
`
`rights in its Confidential Information.
`
`12.
`
`Challenges to Designations: A Party shall not be obligated to challenge the
`
`propriety of a Confidential Material or Highly Confidential - Outside Attorneys’ Eyes
`
`Only Material designation made by another Party at the time the designation is made,
`
`and failure to do so shall not preclude a subsequent challenge thereto. A Party may
`
`challenge such designation by sending written notice to the Producing Party. The
`
`Parties shall attempt to resolve any challenge in good faith on an informal basis. If the
`
`-14-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 15 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 15 of 27
`
`challenge cannot be resolved in that manner, any Party may apply for an appropriate
`
`ruling from the Court. In the event that a Party challenges such designation, such Party
`
`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
`
`the requested relief, the Discovery Material shall be treated as Confidential Material or
`
`Highly Confidential - Outside Attorneys’ Eyes Only Material, as the case may be. The
`
`burden of proving that
`
`information has been properly designated as Confidential
`
`Material or Highly Confidential - Outside Attorneys’ Eyes Only Material shall be on the
`
`Producing Party making such designation.
`
`13.
`
`No Waiver of Designation: Material produced without
`
`the designation
`
`“Confidential Material” or “Highly Confidential - Outside Attorneys’ Eyes Only
`
`Material” may be so designated subsequent
`
`to production if the Producing Party
`
`provides replacement materials bearing an appropriate designation and notifies the
`
`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
`
`Discovery Material is subsequently designated under this Paragraph, the Receiving
`
`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)
`
`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
`
`person but not disseminated to any other person, and shall have the corresponding
`
`designation permanently affixed to said copy.
`
`-15-
`
`
`
`Case 1:14-cv-05575-PAC Document 56 Filed 12/19/14 Page 16 of 27
`Case 1:14-cv-02497-PAC Document 54 Filed 12/18/14 Page 16 of 27
`
`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-05575-PAC Document 56 Filed 12/19/14 Page 17 of 27
`Case 1:14-cv-02497-PAC Document 54 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-05575-PAC Document 56 Filed 12/19/14 Page 18 of 27
`Case 1:14-cv-02497-PAC Document 54 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-05575-PAC Document 56 Filed 12/19/14 Page 19 of 27
`Case 1:14-cv-02497-PAC Document 54 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-05575-PAC Document 56 Filed 12/19/14 Page 20 of 27