Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 1 of 22 PageID #: 1518
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`THE TRUSTEES OF COLUMBIA
`UNIVERSITY IN THE CITY OF NEW
`YORK and QIAGEN SCIENCES, LLC,
`
`v.
`
`ILLUMINA, INC.,
`
`Plaintiffs,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 19-1681-CFC
`
`rrInTragni171;OTECTIVE ORDER
`
`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following Protective
`
`Order shall govern the production or provision of confidential information and things by the
`
`parties in this case and any third parties (provided such third parties recognize and accept the
`
`procedures set forth herein) for the purpose of responding to discovery requests or inquiries.
`
`1.
`
`Any party to this action, and any non-party from whom discovery is sought in
`
`connection with this action, may designate as "Confidential" or "Highly Confidential —
`
`Attorneys' Eyes Only" any documents, testimony, or other discovery material that contains
`
`information of a confidential nature ("Confidential Information"). The term "Party" (collectively
`
`"Parties") shall refer to the named Parties in this action; all predecessors and successors thereof;
`
`all present divisions, subsidiaries or affiliates of any of the foregoing entities; and all directors,
`
`officers, employees, agents, attorneys, or other representatives of any of the foregoing entities.
`
`2.
`
`A Party (or non-party) from whom discovery is sought ("Producing Party") may
`
`designate as "Confidential" any information that it reasonably 1,..1;py,.,,,,,ct;ttitp,,,nfiriAnt;.1
`Columbia Ex. 20(cid:23)(cid:25)
`Illumina, Inc. v. The Trustees
`research, development, financial. technical, or commercial in
`of Columbia University
`in the City of New York
`IPR2020-01177
`
`

`

`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 1 of 22 PageID #: 1518
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`THE TRUSTEES OF COLUMBIA
`UNIVERSITY IN THE CITY OF NEW
`YORK and QIAGEN SCIENCES, LLC,
`
`v.
`
`ILLUMINA, INC.,
`
`Plaintiffs,
`
`Defendant.
`
`)
`)
`)
`)
`)
`) C.A. No. 19-1681-CFC
`)
`)
`)
`)
`)
`
`rPITUPUSTlirROTECTIVE ORDER
`
`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following Protective
`
`Order shall govern the production or provision of confidential information and things by the
`
`parties in this case and any third parties (provided such third parties recognize and accept the
`
`procedures set forth herein) for the purpose of responding to discovery requests or inquiries.
`
`1.
`
`Any party to this action, and any non-party from whom discovery is sought in
`
`connection with this action, may designate as "Confidential" or "Highly Confidential —
`
`Attorneys' Eyes Only" any documents, testimony, or other discovery material that contains
`
`information of a confidential nature ("Confidential Information"). The term "Party" (collectively
`
`"Parties") shall refer to the named Parties in this action; all predecessors and successors thereof;
`
`all present divisions, subsidiaries or affiliates of any of the foregoing entities; and all directors,
`
`officers, employees, agents, attorneys, or other representatives of any of the foregoing entities.
`
`2.
`
`A Party (or non-party) from whom discovery is sought ("Producing Party") may
`
`designate as "Confidential" any information that it reasonably believes constitutes confidential
`
`research, development, financial. technical, or commercial information.
`
`

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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 2 of 22 PageID #: 1519
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`3.
`
`A Producing Party may designate as "Highly Confidential — Attorneys' Eyes
`
`Only" any information that it reasonably believes constitutes competitively sensitive
`
`information that could be used by the receiving Party to obtain a business (not legal) advantage
`
`over the Producing Party, including but not limited to pending but unpublished patent
`
`applications, Confidential Information concerning profit margins, information concerning
`
`unreleased products or services, and Confidential Information about existing products or
`
`services.
`
`4.
`
`Material designated as "Confidential" or "Highly Confidential — Attorneys' Eyes
`
`Only" ("Designated Material") shall refer to Confidential Information (as defined above),
`
`including documents, data and information, answers to interrogatories, answers to deposition
`
`questions (if the deposition is so designated as provided herein), responses to requests for
`
`admission, affidavits, expert reports, briefs, and any information copied or extracted therefrom or
`
`attached thereto, as well as all copies, excerpts, summaries, or compilations thereof, plus
`
`testimony, conversations, or presentations by Parties or counsel to or in court or in other settings
`
`that might reveal Confidential Information. The term "Receiving Party" shall refer to the Party
`
`to whom such information is produced by the "Producing Party."
`
`5.
`
`Any Party or non-party to this Agreement who may have discoverable
`
`information may designate as "Confidential" or "Highly Confidential — Attorneys' Eyes Only"
`
`information and documents containing "personal data." "Personal data" includes without
`
`limitation personal records and information, including medical information, ethnicity, political
`
`views, and other sensitive personal information.
`
`6.
`
`Designated Material marked as "Confidential" shall be maintained in confidence
`
`by the Receiving Party, shall be used solely for this action and any patentability challenge before
`
`2
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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 3 of 22 PageID #: 1520
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`the USPTO (e.g., inter partes review, post grant review and ex parte reexamination, hereinafter
`
`"USPTO proceedings") in which any of the patents-in-suit are in issue, and shall not be disclosed
`
`to any person by the Receiving Party in such action or proceedings except:
`
`(a)
`
`The Court and personnel employed by the Court, and, to the extent and in the
`
`manner outlined below, the USPTO;
`
`(b)
`
`Court Reporters and Videographers to the extent that Confidential
`
`Information is disclosed at a deposition or Court session which such reporter
`
`or videographer is transcribing or recording;
`
`(c)
`
`Outside counsel of record for the Parties in this action and attorneys, staff,
`
`and supporting personnel of such counsel, to the extent reasonably necessary
`
`to render professional services in this action;
`
`(d)
`
`Up to three designated in-house counsel of the Receiving Party who are
`
`responsible for or assisting in the conduct of this action and staff and
`
`supporting personnel, where such counsel are not involved in (and who do
`
`not become involved in) the laboratory research and development of DNA
`
`sequencing-by-synthesis (- SBS") technology' for the Receiving Party.
`
`Before any in-house counsel under this paragraph receives any disclosure as
`
`permitted under this Protective Order, each Party shall disclose such in-house
`
`counsel to the other Parties, and each such in-house counsel shall review and
`
`agree to be bound by the terms of this Protective Order by signing the sworn
`
`declaration of the form of Exhibit A attached hereto. If the other Parties do
`
`I See, generally, Fuller, C.W., et al., The challenges of sequencing by synthesis, 27 NATURE
`BIOTECH. 1013 (Nov. 6, 2009).
`
`3
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`not object to the disclosure of Confidential Information to such in-house
`
`counsel within seven business days, then such in-house counsel may review
`
`Confidential Information. Each Party shall have the right to substitute a
`
`newly designated in-house counsel for a previously designated in-house
`
`counsel only if the previously designated in-house counsel is no longer in the
`
`employ of or affiliated with the respective Party. The Receiving Party shall
`
`(i) immediately notify the other Parties of the previously designated in-house
`
`counselor's change in responsibilities, (ii) use its best efforts to retrieve all
`
`Confidential Information previously disclosed to the previously designated in-
`
`house counsel, and (iii) designate a new in-house counsel, provided that such
`
`new in-house counsel meets the above criteria and the Party complies with
`
`the procedures for the designation of in-house counsel set forth above;
`
`(e)
`
`One identified employee of the Receiving Party who needs access to such
`
`information to approve of the Receiving Party's litigation strategy in this
`
`action (including the Receiving Party's settlement of the action), who has
`
`been provided with a copy of this Protective Order and has signed a sworn
`
`declaration of the form of Exhibit A attached hereto, provided that the
`
`employee is not involved in (and does not become involved in) the laboratory
`
`research and development of DNA SBS technology. Before the employee of
`
`a Receiving Party under this paragraph receives any disclosure as permitted
`
`under this Protective Order, the Receiving Party shall disclose the employee
`
`to the other Parties along with a description of the employee's job
`
`responsibilities, and each such employee shall review and agree to be bound
`
`4
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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 5 of 22 PageID #: 1522
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`by the terms of this Protective Order by signing the sworn declaration of the
`
`form of Exhibit A attached hereto. If the other Parties do not object to the
`
`disclosure of Confidential Information to this employee within seven
`
`business days, then such employee may review Confidential Information.
`
`Each Party shall have the right to substitute a newly designated employee for
`
`the previously designated employee only if the previously designated
`
`employee is no longer in the employ of the Receiving Party, and the newly
`
`proposed employee similarly needs access to such information to approve of
`
`the Receiving Party's litigation strategy in this action (including the
`
`Receiving Party's settlement of the action ) and also is not involved in (and
`
`does not become involved in) the laboratory research and development of
`
`DNA SBS technology. When such a substitution is deemed necessary, the
`
`Receiving Party shall (i) immediately notify the other Parties of the previously
`
`designated employee's departure from the Receiving Party and the new place
`
`of employment, (ii) use its best efforts to retrieve all Confidential Information
`
`previously disclosed to the previously designated employee, and (iii)
`
`designate and disclose the new proposed employee, provided that such new
`
`proposed employee meets the above criteria and the Receiving Party
`
`complies with the procedures for the designation of the employee set forth
`
`above;
`
`(f)
`
`Designated experts or consultants (and the research personnel, assistants,
`
`secretarial staff, and clerical staff of such experts or consultants) who are not
`
`employees of the Receiving Party and who are retained by a Party or its
`
`5
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`

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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 6 of 22 PageID #: 1523
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`attorneys of record in this action or in related actions where infringement
`
`and/or validity of the patents-in-suit is at issue, to assist in the preparation of
`
`the case, such as economic, accounting, or scientific experts or technical
`
`advisors, or to furnish technical or expert services in connection with this
`
`action, or to give testimony with respect to the subject matter thereof for the
`
`trial of this action under Federal Rules of Civil Procedure Rule 26(a) and (b);
`
`and (i) who are not at the time giving technical advice unrelated to litigation
`
`to the Receiving Party or other SBS competitors of the Parties regarding how
`
`best to modify or incorporate nucleotides for use in SBS methods, and (ii)
`
`who have been provided with a copy of this Protective Order and have signed
`
`a sworn declaration of the form of Exhibit A attached hereto. Counsel for the
`
`Receiving Party shall maintain such signed sworn declarations, and make
`
`them available to the Producing Party upon request upon the conclusion of
`
`the action.
`
`(g)
`
`Persons who appear on the face of such Designated Material as an author,
`
`addressee. or recipient thereof; or persons in whose files the document or
`
`thing was found;
`
`(h)
`
`Duplicating, photocopying, videography, imaging, graphics, demonstrative,
`
`and document coding/scanning contractors;
`
`(i)
`
`Persons who have been retained by a Party to provide translation or
`
`interpretation from one language to another;
`
`0)
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`Mock jurors and jury consultants who have been engaged by the Parties or
`
`the consultants in preparation for trial and who have been provided with a
`
`6
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`copy of this Protective Order and have signed a sworn declaration of the form
`
`of Exhibit A attached hereto. For any jury research, an appropriate screening
`
`process must be used to assure that the jury consultant(s) and mock jurors
`
`selected for any mock jury presentation are not current or former, officers,
`
`directors, employees, or consultants of any Party or any direct competitors of
`
`any Party; and
`
`(k)
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`Such other persons as the Producing Party may, in writing, agree, or who
`
`may receive Confidential information by order of this Court.
`
`7.
`
`Material marked as - Highly Confidential — Attorneys' Eyes Only" shall be
`
`maintained in confidence by the Party to whom such material is produced, shall be used solely
`
`for this action and any USPTO proceedings in which any of the patents-in-suit are in issue, and
`
`shall not be disclosed by the Receiving Party to any person in this action or such proceedings
`
`except the persons specified in sub-paragraphs (a), (b), (c), (d), (0, (g), (h), (i), (j), and (k) of
`
`paragraph 6 above.
`
`8.
`
`In the event that a Producing Party elects to produce original documents or other
`
`material for inspection, no markings need be made on the documents or material by the
`
`Producing Party in advance of the inspection. During the inspection, such documents or material
`
`shall be considered "Highly Confidential — Attorneys' Eyes Only." After selection by the
`
`inspecting party of specific documents or material for copying, the Producing Party shall make
`
`the appropriate copies, and the appropriate confidentiality designations shall be placed on the
`
`documents or materials before they are provided to the inspecting party.
`
`9.
`
`Notwithstanding any other provision of this Protective Order, and in addition to
`
`the protections and limitations on use of information already provided in other sections, any
`
`7
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`

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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 8 of 22 PageID #: 1525
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`person who receives from and reviews information produced by a Producing Party in this action
`
`designated as "Confidential" or - Highly Confidential — Attorneys' Eyes Only" and describing
`
`the Producing Party's methods (including but not limited to for sequencing and of
`
`manufacturing), procedures, processes, compositions of matter, machines, or devices shall not (a)
`
`participate in patent prosecution before the United States Patent and Trademark Office
`
`("USPTO"), or in any other country. for any patent or patent application having claims involving
`
`the sequencing of nucleic acids: or (b) participate in the amendment, modification or addition of
`
`patent claims described in 9(a), including via any USPTO proceedings relating to such patent
`
`claims. In addition, any person who receives and reviews information designated as
`
`"Confidential" or "Highly Confidential — Attorneys' Eyes Only" relating to the Producing
`
`Party's pricing or cost information shall not directly participate in the setting of price or cost of
`
`the Receiving Party's products or services relating to SBS. For the avoidance of doubt, a person
`
`"participates" in the work described in this Paragraph when he or she performs or reviews the
`
`relevant work relating to such patent prosecution (or the amendment, modification, or addition
`
`thereof) or pricing or cost information and makes a contribution to such relevant work, whether
`
`directly, or by making suggestions or edits to the work of others (thus including oral or written
`
`discussions regarding same). A person does not "participate" in such work just by supervising or
`
`being ultimately responsible for those who do directly participate in such work. In addition, for
`
`the further avoidance of doubt. nothing in this paragraph 9 shall prohibit a person from
`
`participating in litigation, such as this action, or from participating in any ex parte reexamination
`
`or proceeding before the Patent Trial and Appeal Board ("PTAB") (including any involving any
`
`of the patents in-suit in this Action), except that this paragraph 9 still shall prohibit a person from
`
`participating in the amendment. modification, or addition of patent claims involving the
`
`8
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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 9 of 22 PageID #: 1526
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`sequencing of nucleic acids in an ex parte reexamination or IPR , as provided in 9(b) herein. The
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`preclusions set forth in this paragraph relating to (a) U.S. and foreign patent prosecution, and (b)
`
`claim drafting, amendments, modifications, or additions shall apply to (i) patent applications
`
`having an effective filing date before, anytime during, or up to 2 years after the conclusion of
`
`this action, including by settlement and/or the completion and exhaustion of all appeals,
`
`rehearings, remands, trials, or reviews of this action, and (ii) patents having an issue date during
`
`or up to 2 years after the conclusion of this action, including by settlement and/or the completion
`
`and exhaustion of all appeals. rehearings, remands, trials, or reviews of this action. The
`
`preclusions set forth in this Paragraph relating to the setting of price or costs of the Receiving
`
`Party's products or services shall last for 2 years after the conclusion of this action, including by
`
`settlement and/or the completion and exhaustion of all appeals, rehearings, remands, trials, or
`
`reviews of this action.
`
`10.
`
`Testimony, including in the form of transcripts, disclosed at a deposition, or
`
`during testimony at a hearing or trial of (i) a Party, the present or former officers, directors,
`
`employees, agents, or experts retained by a Party for the purpose of this action, or (ii) a third
`
`party in possession of Confidential Information of its own or of a Party, shall be automatically
`
`designated and treated by all Receiving Parties as "Highly Confidential — Attorneys' Eyes Only."
`
`At any time, a Receiving Party may request that the Producing Party provide precise
`
`confidentiality designations as to the confidential status of the Producing Party's information in
`
`such transcript (e.g., which pages and lines of the transcript are not restricted at all under this
`
`Protective Order, and/or constitute "Confidential" or "Highly Confidential — Attorneys' Eyes
`
`Only" information). The Producing Party has ten days to provide such designations, and to do so
`
`in good faith. If the Receiving Party disputes such new designations, the Parties shall follow the
`
`9
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`

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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 10 of 22 PageID #: 1527
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`dispute resolution process outlined in paragraph 15 of this Protective Order, with the new
`
`designations applying until the dispute is resolved.
`
`11.
`
`The inadvertent or unintentional production of material or documents containing
`
`Confidential Information without an appropriate confidentiality designation shall not be deemed
`
`a waiver in whole or in part of a claim for confidential treatment. A Producing Party that
`
`inadvertently or unintentionally produces material or documents containing Confidential
`
`Information without a confidentiality designation may request destruction of the undesignated
`
`copies by notifying the Receiving Party, as soon as reasonably possible after the Producing Party
`
`becomes aware of the inadvertent or unintentional disclosure, and providing replacement
`
`material or documents that are properly designated. The Receiving Party shall then collect and
`
`destroy all undesignated copies of the inadvertently or unintentionally produced material or
`
`documents.
`
`12.
`
`Absent any overriding rules of this Court or orders of this Court, no material
`
`containing Confidential Information shall be filed in the public record of this action. In the
`
`event that any document or information that has been designated "Confidential" or "Highly
`
`Confidential — Attorneys' Eyes Only" is included with, or in any way disclosed in, any
`
`pleading, motion, deposition transcript, correspondence, or other paper filed with the Court,
`
`such document or information and related material shall be filed under seal with the Court in
`
`accordance with Local Civil Rule 5.1.3. In the event a physical copy of a document containing
`
`Confidential Information is to be fi led in this action, it must be filed in a sealed envelope
`
`bearing the legend "Filed Under Seal" on its front face. The envelope shall also bear the
`
`caption of the case, shall state the title of the documents contained therein and shall state that
`
`the document is filed under the terms of this Protective Order. The parties agree that they shall
`
`10
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`

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`attempt in good faith to enter into a protective order of sufficiently equal protection as
`
`provided herein by this Order to also govern the Confidential Information submitted in any
`
`related proceedings involving any of the patents-in-suit before the PTAB, as provided by the
`
`rules and regulations applicable to such proceedings. Any Confidential Information submitted
`
`in a proceeding involving any of the patents-in-suit before the PTAB shall be filed under seal
`
`pursuant to said protective order and pursuant to the PTAB's rules for filing under seal.
`
`13.
`
`Inadvertent production of information subject to attorney-client privilege, work-
`
`product immunity, or any other applicable privilege or immunity shall be handled as follows, but
`
`without waiver of or prejudice to the right of any Party to apply to the Court for further
`
`protection or disclosure relating to discovery:
`
`(a)
`
`Immediately upon receiving notice from the Producing Party that information
`
`subject to attorney-client privilege, work-product immunity, or any other
`
`applicable privilege or immunity, has been inadvertently produced, the
`
`Receiving Party shall not review, copy, or otherwise disseminate the
`
`documents or materials, nor shall it disclose their substance except as
`
`described in subsection (c) below. The Receiving Party shall also return or
`
`destroy (at the Producing Party's option) the documents or materials and all
`
`copies, including electronic copies, within three business days from receiving
`
`notice. The Producing Party must provide a privilege log for the allegedly
`
`privileged documents or materials, within three business days of providing
`
`notice to the Receiving Party. The Producing Party must also preserve the
`
`information until the claims are resolved;
`
`1 1
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`(b)
`
`If the Receiving Party, without notice from the Producing Party, determines
`
`that information subject to attorney-client privilege or work-product immunity
`
`has been inadvertently produced, the Receiving Party shall immediately
`
`contact the Producing Party and advise the Producing Party of the inadvertent
`
`disclosure. The Receiving Party shall not review, copy, or otherwise
`
`disseminate the documents or materials, nor shall it disclose their substance.
`
`The Receiving Party shall also return or destroy (at the Producing Party's
`
`option) the documents or materials and all copies, including electronic copies,
`
`within five business days from discovery of the inadvertent disclosure. The
`
`Producing Party must provide a privilege log for the allegedly privileged
`
`documents or materials, within six business days from discovery of the
`
`inadvertent disclosure, unless the parties agree to a longer period of time. The
`
`Producing Party must also preserve the information until the claims are
`
`resolved;
`
`(c)
`
`If the Receiving Party believes that it has a good-faith basis for challenging a
`
`privilege or immunity claim, the Receiving Party still shall return or destroy
`
`all copies of the documents or material that are subject of the claim of
`
`inadvertent production, and shall provide the Producing Party with a written
`
`explanation of the good-faith basis for the belief that the produced documents
`
`or materials are not privileged (which shall include the specific identification
`
`of the document(s) at issue, including the Bates number of each such
`
`document(s)). within three business days of the Producing Party's request for
`
`return. The Producing Party shall respond in writing to the Receiving Party's
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`12
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`timely challenge to a privilege or immunity claim within five business days
`
`from receipt of the challenge;
`
`(d)
`
`In the event the Parties cannot agree as to the privileged or immune status of
`
`produced documents or materials, the Receiving Party shall have five business
`
`days from receipt of the Producing Party's written response to the privilege
`
`challenge to seek, in accordance with the scheduling order entered and any
`
`applicable standing orders or local rules, an order compelling production of
`
`the produced documents or materials. The Receiving Party shall not use the
`
`fact of the production or refer to the content of the produced documents or
`
`materials to challenge their claimed status as privileged or immune. In the
`
`event that a motion is made, the Producing Party shall have the burden of
`
`proving that the produced documents or materials are privileged or immune
`
`from discovery. Nothing in this paragraph is intended to limit the rights of
`
`any Party pursuant to Fed. R. Civ. P. 26(b)(5)(B);
`
`(e)
`
`Disclosure of information subject to the attorney-client privilege, work-
`
`product immunity, or any other applicable privilege or immunity shall not
`
`constitute a waiver of such privilege or immunity. Pursuant to Rule 502(d) of
`
`the Federal Rules of Evidence, the Court hereby orders that neither attorney-
`
`client privilege nor protection under the work-product doctrine is waived by
`
`disclosure of information, inadvertent or otherwise, subject to attorney-client
`
`privilege or work product immunity, in which event such disclosure is also not
`
`a waiver in any other federal or state proceeding.
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`13
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`14.
`
`If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
`
`Confidential Information of another Party or non-party to any person or in any circumstance not
`
`authorized under this Protective Order, the Receiving Party must immediately (i) notify in
`
`writing the Producing Party of the unauthorized disclosures, (ii) use its best efforts to retrieve all
`
`unauthorized copies of the Confidential Information, (iii) inform the person or persons to whom
`
`unauthorized disclosures were made of all the terms of this Protective Order, and (iv) request that
`
`such person or persons sign a sworn declaration of the form of Exhibit A attached hereto.
`
`15.
`
`A Party may challenge the correctness or propriety of a confidentiality
`
`designation or redaction of a Producing Party by first seeking to meet and confer and resolve the
`
`matter in good faith, and then via submission to the Court, as follows:
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`(a)
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`A Party that elects to initiate a challenge to a Producing Party's confidentiality
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`designation or redaction must do so in good faith and must begin the process
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`by requesting a conference directly with counsel for the Producing Party. The
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`Parties shall meet and confer within five days of such a request. In conferring,
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`the challenging Party must explain the basis for its belief that the
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`confidentiality designation or redaction was not proper and must give the
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`Producing Party an opportunity to review the confidentiality designation or
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`redaction, to reconsider the circumstances, and if no change in the designation
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`or redaction is offered, to explain the basis for the chosen designation or
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`redaction; and
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`(b)
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`If no agreement is reached on the confidentiality designation or redaction,
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`after completing the required meet and confer process, the Producing Party
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`may seek a ruling. through the Court's discovery dispute procedure, on the
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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 15 of 22 PageID #: 1532
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`Producing Party's confidentiality designation or redaction. The burden of
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`persuasion in any such challenge proceeding shall be on the Producing Party.
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`Until the Court rules on the challenge, all Parties shall continue to afford the
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`material in question the level of protection to which it is entitled under the
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`Producing Party's last designation. If the Producing Party does not seek a
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`court ruling within ten days of completing the required meet and confer
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`process, the material in question shall receive the level of protection being
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`asserted by the challenging Party, or with regards to a disputed redaction, the
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`Producing Party shall produce the document without the disputed redaction.
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`16.
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`If Confidential Information in the possession, custody, or control of a Receiving
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`Party is sought by subpoena, request for production, interrogatory, or any other form of
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`discovery request or compulsory process of any court, administrative body or legislative body,
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`or any other person or tribunal purporting to have authority to seek such information by
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`compulsory process or discovery request, including private parties, the Receiving Party shall:
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`(i) within three business days after receipt thereof (or if there are less than three business days
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`to so act, in any event sufficiently prior to compliance with said request), give written notice
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`by hand, facsimile or electronic mail of such process or discovery request together with a copy
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`thereof, to counsel for the Producing Party; (ii) cooperate to the extent necessary to permit the
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`Producing Party to seek to quash such process or discovery request; and (iii) not produce or
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`disclose such Confidential Information until the Producing Party consents in writing to its
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`production, or the Receiving Party is ordered by a court of competent jurisdiction to produce or
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`disclose the Confidential Information.
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`Case 1:19-cv-01681-CFC-SRF Document 24 Filed 01/10/20 Page 16 of 22 PageID #: 1533
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`17.
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`The terms of this Protective Order are applicable to information produced by a
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`non-party in this action and designated as "Confidential" or "Highly Confidential — Attorneys'
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`Eyes Only." Such Confidential Information produced by non-parties in connection with this
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`action is protected by the remedies and relief provided by this Protective Order to the same
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`extent and degree that Confidential Information produced by the Parties is protected by this
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`Protective Order.
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`18.
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`The documents produced in The Trustees. of Columbia University in the City of
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`New York v. Illumina, Inc.. No. 12-376 (GMS) (D. Del.) (i.e., CU0000001-89256,
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`IBS00000001-358060, and 11,MN_COL0000001-4572790); Illumina, Inc. v. QIAGEN N.V.,
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`No. 3:16-cv-2788-WHA (N.D. Cal.) (i.e.,
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`1-1 17449 and
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`QIAGENNV00001-5217); arid The Trustees of Columbia University in the City of New York v.
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`Illumina, Inc., No. 17-973 (CFC) (D. Del.) (i.e., CU2000001-2005288, and
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`ILMNQGNDE00000001-5504) shall be treated and maintained by the Parties as though
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`produced in this action under this protective order, and confidentiality designations applied to
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`such documents shall continue to apply under this protective order.
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`19. Within sixty days after the conclusion of this action, including the completion and
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`exhaustion of all appeals. rehearings. remands, trials, or reviews of this action, all Confidential
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`Information designated and produced hereunder, and all copies thereof, shall be returned to the
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`Producing Party or destroyed. Receiving Party shall certify in writing that such material,
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`including electronically stored information, has been destroyed. Notwithstanding the
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`foregoing,