Plaintiff,
`
`
`v.
`
`
`REGENERON PHARMACEUTICALS, INC.,
`
`
`
`
`CELLTRION, INC.,
`
`
`
`
`
`
`
`
`Civil Action No. 1:23-cv-00089-TSK
`
`
`
`
`
`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 1 of 32 PageID #: 15742
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`CLARKSBURG DIVISION
`
`
`
`
`Defendant.
`
`STIPULATED PROTECTIVE ORDER
`
`Pursuant to Northern District of West Virginia Local Rule 26.05, and upon agreement of
`
`the Parties for an order pursuant to Federal Rule of Civil Procedure 26(c), Plaintiff Regeneron
`
`Pharmaceuticals, Inc. (“Regeneron”) and Defendant Celltrion, Inc. (“Celltrion”) (each a “Party”
`
`and collectively the “Parties”), hereby stipulate to the entry of this Protective Order concerning the
`
`confidentiality of documents and other information that has been or will be exchanged between
`
`the Parties during discovery in the above-captioned action (the “Action”). Celltrion’s stipulation
`
`to this Protective Order is without prejudice to its standing objections to jurisdiction and venue, as
`
`set forth in its January 17, 2024 motion papers:
`
`I.
`
`Definitions.
`
`1.
`
`As used in this Protective Order, these terms have the following meanings:
`
`(a)
`
`“Patents-in-Suit” refers to United States Patents that Regeneron has claimed
`
`Celltrion infringes as set forth in the operative complaint in this Action;
`
`(b)
`
`“Action” means the case captioned Regeneron Pharmaceuticals, Inc. v.
`
`Celltrion, Inc., Case No. 1:23-cv-00089-TSK, which is currently pending
`
`in the Northern District of West Virginia;
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 2 of 32 PageID #: 15743
`
`(c)
`
`“Affiliate” means any Third Party that, directly or indirectly, through one
`
`or more intermediaries controls, or is controlled by, or is under common
`
`control with, a Party to this Action;
`
`(d)
`
`“CONFIDENTIAL” information includes information that constitutes,
`
`contains, reveals, or reflects trade secrets or other confidential research,
`
`development, business, or commercial information within the meaning of
`
`Federal Rule of Civil Procedure 26(c)(1)(G), including but not limited to:
`
`scientific and technical information; financial (including pricing and sales
`
`information), budgeting and/or accounting information; information about
`
`existing and potential customers; marketing and other business strategies,
`
`decisions or negotiations; employee compensation, evaluation and other
`
`employment information; business plans; manufacturing information;
`
`licensing agreements; regulatory
`
`information (including non-public
`
`correspondence with the United States and foreign patent offices and
`
`regulatory agencies); and information that concerns or relates to the trade
`
`secrets, processes, operations, style of work, or apparatus, or to the
`
`production, sales, shipments, purchases,
`
`transfers,
`
`identification of
`
`customers, inventories, amount or source of any income, profits, losses, or
`
`expenditures of any person, firm, partnership, corporation, or other
`
`organization; and any other information that is protected from disclosure by
`
`the laws of the United States or another country; and includes such
`
`confidential and proprietary information about a Third Party, including
`
`parents, subsidiaries, and/or other Affiliates; “Personal Data” as defined
`
`
`
`2
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 3 of 32 PageID #: 15744
`
`below, and any other information the disclosure of which would harm the
`
`competitive position of the Producing Party if the information becomes
`
`known to a person or party other than the Producing Party other than as
`
`permitted hereunder;
`
`(e)
`
`“CONTROLLED HIGHLY CONFIDENTIAL INFORMATION” means
`
`any Disclosure responsive to a subpoena where such Disclosure contains
`
`extremely sensitive and highly confidential and proprietary trade secret
`
`information deserving even further limitation on its production than
`
`OUTSIDE COUNSEL’S EYES ONLY Disclosures. The designation
`
`CONTROLLED HIGHLY CONFIDENTIAL INFORMATION may be
`
`abbreviated as “CHCI” or “CHCI Disclosure;”
`
`(f)
`
`“Designated In-house Counsel” means an attorney, or member of an in-
`
`house legal division, who is an employee of a Party or a Party’s Affiliate
`
`and is designated in accordance with Paragraph 9(h);
`
`(g)
`
`“Designating Party” is a Party or Third Party that designates information or
`
`items that it produces in Disclosures as “CONFIDENTIAL,” “OUTSIDE
`
`COUNSEL’S EYES ONLY,”
`
`or
`
`“CONTROLLED HIGHLY
`
`CONFIDENTIAL INFORMATION”;
`
`(h)
`
`“Disclosure(s)” means all documents; written discovery requests and
`
`responses; deposition transcripts; correspondence between the Parties;
`
`pleadings; exhibits; documents and things made available for inspection;
`
`expert testimony and reports; biological materials produced by a Party or
`
`Third Party in this Action including, but not limited to, any physical samples
`
`
`
`3
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 4 of 32 PageID #: 15745
`
`of cells, polynucleotides, or proteins; all other discovery taken pursuant to
`
`the Federal Rules of Civil Procedure, including Third Party discovery
`
`pursuant to Federal Rule of Civil Procedure 45; and tangible items and any
`
`other information produced or disclosed between the Parties in connection
`
`with this Action, including the pre-suit exchanges made pursuant to 42
`
`U.S.C. § 262(l). For the sake of clarity, the production of biological samples
`
`shall be governed by the terms set forth in Paragraph 45;
`
`(i)
`
`“Document(s)” means all materials within the scope of Federal Rule of Civil
`
`Procedure 34(a);
`
`(j)
`
`“Expert” is a person with specialized knowledge or experience in a matter
`
`pertinent to the Action who (1) has been retained by a Party or its Outside
`
`Counsel to serve as an expert witness or as a consultant in this Action, (2)
`
`is not a current employee of a Party, and (3) at the time of retention, is not
`
`anticipated to become an officer, director, or employee of a Party. Nothing
`
`in this Protective Order purports to alter the requirements for offering
`
`testimony under Federal Rule of Evidence 703, or to define the term
`
`“expert” for purposes other than those addressed in this Protective Order;
`
`(k)
`
`“In-House Counsel” means an in-house attorney, or member of an in-house
`
`legal division, who is an employee of a Party to this Action or a Party’s
`
`Affiliate;
`
`(l)
`
`“Third Party” is any natural person, partnership, corporation, association,
`
`or other legal entity that is not a Party or a Party’s Affiliate;
`
`
`
`4
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 5 of 32 PageID #: 15746
`
`(m)
`
`“Outside Counsel” means the external lawyers retained by the Parties to
`
`litigate this Action and who have appeared in this Action or are acting at the
`
`direction of a lawyer who has appeared in this Action, including, but not
`
`limited to, outside attorneys admitted pro hac vice in this Action and
`
`paralegals, assistants, and other employees or contractors of the respective
`
`law firms of Outside Counsel;
`
`(n)
`
`“OUTSIDE COUNSEL’S EYES ONLY” information means particularly
`
`sensitive information relevant to the Designating Party’s current or
`
`prospective products, scientific or
`
`technical
`
`information, business
`
`information of current or prospective significance and for which production
`
`on a confidential basis, even to In-house Counsel, would create a substantial
`
`risk of serious harm to the Designating Party that could not be avoided by
`
`less restrictive means. For clarity, the OUTSIDE COUNSEL’S EYES
`
`ONLY designation shall not be applied to materials disclosed in exchanges
`
`made pursuant to 42 U.S.C. §262(l) that were not designated OUTSIDE
`
`COUNSEL’S
`
`EYES ONLY
`
`or CONTROLLED HIGHLY
`
`CONFIDENTIAL INFORMATION.
`
`(o)
`
`“Party” means any party to this Action, including all of its officers,
`
`directors, employees;
`
`(p)
`
`“Personal Data” means any information that a Party believes in good faith
`
`to be subject to data protection laws or other privacy obligations. In
`
`particular, such data protection laws include the European Union General
`
`Data
`
`Protection
`
`Regulation
`
`(“GDPR”),
`
`the
`
`German
`
`
`
`5
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 6 of 32 PageID #: 15747
`
`Bundesdatenschutzgestetz, and the South Korea Personal Information
`
`Protection Act (“PIPA”) and any amendments thereof, including the latest
`
`amendment that took effect in September 2023. “Personal Data” shall mean
`
`all information relating to an identified or (directly or indirectly) identifiable
`
`person (“Data Subject”) originating from or processed in, inter alia, the
`
`European Union/European Economic Area or South Korea. “Personal
`
`Data” includes but is not limited to the Data Subject's name, location data
`
`(such as an address or a phone number) or online identifiers (such as email
`
`or IP addresses). All of the provisions in the Protective Order applicable to
`
`CONFIDENTIAL information will apply equally to Personal Data;
`
`(q)
`
`“Producing Party” is any Party or Third Party that produces or provides a
`
`Disclosure;
`
`(r)
`
`“Protected Material”
`
`is any Disclosure
`
`that
`
`is designated as
`
`“CONFIDENTIAL,” “OUTSIDE COUNSEL’S EYES ONLY,” or
`
`“CONTROLLED HIGHLY CONFIDENTIAL INFORMATION”;
`
`(s)
`
`“Prosecution” means any participation in and/or contribution to drafting,
`
`amending, or modifying patent claims in the U.S. Patent & Trademark
`
`Office (“USPTO”) and/or a foreign patent office, including during an inter
`
`partes review (“IPR”) or post grant review (“PGR”), or any other
`
`proceeding before a domestic and/or foreign agency, or advising a Party or
`
`other entity regarding drafting, amending, or modifying patent claims. For
`
`the sake of clarity, “Prosecution” does not include participation in a
`
`challenge or in defense of a patent before a domestic or foreign agency
`
`
`
`6
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 7 of 32 PageID #: 15748
`
`(including but not limited to participation in IPR proceedings, PGR
`
`proceedings, an International Trade Commission (“ITC”) proceeding, inter
`
`partes reexamination, ex parte reexamination, reissue, certificates of
`
`correction, opposition at the European Patent Office (“EPO”), or other post-
`
`grant review proceedings), provided, however, that such participation does
`
`not involve, directly or indirectly, drafting, amending, or modifying of
`
`patent claim(s);
`
`(t)
`
`(u)
`
`(v)
`
`“Protective Order” means this Stipulated Protective Order;
`
`“Receiving Party” is any Party or Third Party receiving a Disclosure;
`
`“Third Party” means a person or entity that is not a Party; and
`
`(w)
`
`“Written Assurance” means an executed document in the form attached as
`
`Exhibits A or B.
`
`II.
`
`Scope.
`
`2.
`
`The protections conferred by this Protective Order cover not only Protected
`
`Material (as defined above), but also (1) any information copied or extracted from Protected
`
`Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any
`
`testimony, conversations, or presentations by Parties or their counsel that disclose the substance
`
`of Protected Material.
`
`3.
`
`The protections conferred by this Protective Order do not cover the following
`
`information: (a) any information that is in the public domain at the time of disclosure to a
`
`Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
`
`a result of publication not involving a violation of this Protective Order, including becoming part
`
`of the public record through trial or otherwise; and (b) any information known to the Receiving
`
`
`
`7
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 8 of 32 PageID #: 15749
`
`Party prior to the disclosure or obtained by the Receiving Party from a source who obtained the
`
`information lawfully and under no obligation of confidentiality to the Designating Party.
`
`4.
`
`The Parties shall meet and confer regarding the use of Protected Material at trial,
`
`which may be governed by a separate agreement or order.
`
`III. Access to CONFIDENTIAL and OUTSIDE COUNSEL’S EYES ONLY Disclosures.
`
`5.
`
`A Producing Party may designate as “CONFIDENTIAL” or “OUTSIDE
`
`COUNSEL’S EYES ONLY” any Disclosure made to any Party in connection with this Action,
`
`including any appeal(s) therefrom or any remands thereto, in accordance with this Protective
`
`Order.
`
`6.
`
`Subject to Paragraphs 2 and 10, no person receiving CONFIDENTIAL or
`
`OUTSIDE COUNSEL’S EYES ONLY Disclosures shall, directly or indirectly, disclose or
`
`communicate in any way their contents to any person who is not a Qualified Person permitted to
`
`receive such Disclosures under this Protective Order.
`
`7.
`
`All Protected Material shall be used solely for this Action, including any appeal(s)
`
`therefrom or any remands thereto. Protected Material may not be used under any circumstances
`
`for a related, separate or foreign action or proceeding, prosecution of any patent application, patent
`
`licensing or for any other purpose, including without limitation for any research, development,
`
`commercial, marketing, regulatory, or other competitive purpose, including in connection with
`
`communications, negotiations or agreements with health care providers, patients, customers, third-
`
`party payors or formularies. All persons receiving Protected Material are expressly prohibited
`
`from using or disclosing such information in connection with any practice before or
`
`communication with the USPTO, the United States Food and Drug Administration (“FDA”), the
`
`United States Pharmacopoeia (“USP”), or their counterpart organizations in any foreign
`
`jurisdiction.
`
`
`
`8
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 9 of 32 PageID #: 15750
`
`8.
`
`Nothing in this Protective Order shall restrict any Party’s counsel from rendering
`
`advice to its clients with respect to this Action that is generally informed by Protected Material,
`
`provided, however, that in rendering such advice, counsel shall not disclose any other Party’s
`
`Protected Material other than in a manner provided for in this Protective Order.
`
`9.
`
`Unless otherwise directed by the Court or authorized in writing by the Producing
`
`Party, all CONFIDENTIAL Disclosures may be disclosed by the Receiving Party only to the
`
`following Qualified Persons:
`
`(a)
`
`the Court, its officers, and any members of its staff to whom it is necessary
`
`to disclose CONFIDENTIAL information contained in CONFIDENTIAL
`
`Disclosures for the purpose of assisting the Court in this Action, and
`
`stenographic employees, court reporters and typists for the sole purpose of
`
`recording or transcribing testimony, documents, or information relating to
`
`this Action;
`
`(b)
`
`the Parties’ Outside Counsel of record in this Action and the paralegals,
`
`assistants, other employees and contractors of the respective law firms of
`
`Outside Counsel of record in this Action to the extent such persons’ duties
`
`and responsibilities require access to CONFIDENTIAL Disclosures and
`
`provided that such Outside Counsel has no current involvement and will not
`
`have involvement in any of the following activities: (1) prosecution of any
`
`domestic or foreign patent or patent application claiming priority to the
`
`Patents-in-Suit or any related domestic or foreign patents or patent
`
`applications, or any other domestic or foreign patent or patent application
`
`relating to aflibercept and/or covering any aflibercept subject matter
`
`
`
`9
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 10 of 32 PageID #: 15751
`
`disclosed
`
`in a Patent-in-Suit;
`
`(2) competitive decision making
`
`responsibilities for the sales and marketing of aflibercept; (3) competitive
`
`decision making responsibilities for research and/or development and/or
`
`manufacturing of any aflibercept subject matter disclosed in a Patent-in-
`
`Suit; and (4) petitioning FDA, the USP, or any similar foreign or domestic
`
`agency concerning aflibercept or any subject matter disclosed in a Patent-
`
`in-Suit. This Protective Order imposes a bar on Outside Counsel who have
`
`received Confidential Information from engaging in the above activities
`
`effective upon its entry by this Court and terminating one (1) year after final
`
`termination of this Action.
`
`(c)
`
`litigation support consultants (including translators, e-discovery, trial
`
`graphics, jury focus group consultants, mock jurors), outside copying
`
`services, and temporary/contract attorneys retained by Outside Counsel in
`
`this Action identified in Paragraph 6(b) with whom such Outside Counsel
`
`work in connection with this Action to the extent such persons have
`
`expressly agreed to maintain the confidentiality of their work and the
`
`CONFIDENTIAL Disclosures they receive, and provided that such
`
`personnel are not engaged in the research, development, manufacture,
`
`registration, or sale of pharmaceutical products that may be related to the
`
`subject matter of the Patents-in-Suit;
`
`(d)
`
`prior authors or recipients of the CONFIDENTIAL Disclosure;
`
`
`
`10
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 11 of 32 PageID #: 15752
`
`(e)
`
`witnesses designated pursuant to Federal Rule of Civil Procedure 30(b)(6),
`
`provided that the CONFIDENTIAL Disclosures were designated as
`
`(f)
`
`(g)
`
`CONFIDENTIAL by the Party for which they are testifying;
`
`others to whom the Producing Party consents;
`
`Experts of the Receiving Party to whom disclosure is reasonably necessary
`
`for this litigation, and who have signed a Written Assurance (attached as
`
`Exhibit A), and to whom the Disclosing Party does not object within two
`
`(2) business days of receiving written notice from the Producing Party of an
`
`intent to share CONFIDENTIAL Disclosures with that Expert. Written
`
`notice under this sub-paragraph shall include the name and address of the
`
`Expert to whom disclosure is to be made, a current resume or curriculum
`
`vitae, a copy of the signed Written Assurance (Exhibit A), and a list of cases
`
`in which the Expert has testified as an expert at trial or deposition within
`
`the last four (4) years. Any such objection must be set forth in writing and
`
`explain the ground(s) on which such objection is based and be made in good
`
`faith. A Party that receives a timely written objection must promptly meet
`
`and confer with the objecting Party in person or through telephonic means
`
`to attempt to resolve the matter. If the Parties are unable to reach agreement
`
`regarding such disclosure, the objecting Party may apply to the Court for a
`
`protective order or other appropriate relief no later than five (5) days (as
`
`calculated by Federal Rule of Civil Procedure 6) of the original written
`
`notice, and no disclosure of CONFIDENTIAL information may be made to
`
`the Expert unless and until the Motion is resolved in favor of the Receiving
`
`
`
`11
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 12 of 32 PageID #: 15753
`
`Party or the objection is withdrawn. New written notice does not need to be
`
`provided for Experts already identified and not objected to pursuant to the
`
`Parties’ September 2023 Confidentiality Agreement, although such Experts
`
`must sign a Written Assurance and provide it to the adverse Party before a
`
`Party makes further CONFIDENTIAL Disclosures to such Experts;
`
`(h)
`
`for each Party, up to five (5) Designated In-house Counsel, who, because of
`
`their duties and responsibilities, require access to CONFIDENTIAL
`
`Disclosures, provided such Designated In-house Counsel have no current
`
`involvement and will not have involvement in any of the following
`
`activities: (1) prosecution of any domestic or foreign patent or patent
`
`application claiming priority to the Patents-in-Suit or any related domestic
`
`or foreign patents or patent applications, or any other domestic or foreign
`
`patent or patent application relating to aflibercept and/or covering any
`
`subject matter claimed in a Patent-in-Suit; (2) competitive decision making
`
`responsibilities for the sales and marketing of aflibercept or other drugs used
`
`for ophthalmic indications; (3) competitive decision making responsibilities
`
`for the research and/or development and/or manufacturing of aflibercept or
`
`any other drugs used for ophthalmic indications; or (4) responsibility for
`
`petitioning FDA, the USP, or any similar foreign or domestic agency
`
`concerning aflibercept or any aflibercept subject matter disclosed in a
`
`Patent-in-Suit. This Protective Order imposes a bar on Designated In-House
`
`Counsel who have received Confidential Information from engaging in the
`
`
`
`12
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 13 of 32 PageID #: 15754
`
`above activities effective upon its entry by this Court and terminating one
`
`(1) year after final termination of this Action.
`
`(i)
`
`A Party may designate In-house Counsel or replace a Designated In-house
`
`Counsel by providing to the other Parties an executed acknowledgmentin
`
`the form attached as Exhibit B which, among other things, (1) sets forth the
`
`full name of the Designated In-house Counsel, (2) identifies the Designated
`
`In-house Counsel’s current employer, job title and job description, and (3)
`
`affirms that the Designated In-house Counsel is not involved in any of the
`
`prohibited activities set forth in this Protective Order. A Party that makes a
`
`request to designate or replace a Designated In-house Counsel and provides
`
`an executed and completed Exhibit B to the other Party’s Outside Counsel
`
`may disclose CONFIDENTIAL information to the newly Designated In-
`
`house Counsel five (5) days after delivering the executed Exhibit B (as
`
`calculated by Federal Rule of Civil Procedure 6), unless within that five (5)
`
`day period, the Party receives a written objection from the objecting Party.
`
`Any such objection must set forth in detail the ground(s) for the objection
`
`and be made in good faith. A Party that receives a timely objection must
`
`meet and confer with the objecting Party in person or through telephonic
`
`means to attempt to resolve the matter. Following the meet and confer, the
`
`objecting Party may apply to the Court for a protective order or other
`
`appropriate relief no later than ten (10) days (as calculated by Federal Rule
`
`of Civil Procedure 6) after the meet and confer; and
`
`
`
`13
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 14 of 32 PageID #: 15755
`
`(j)
`
`any paralegal, secretarial or clerical employee of each Party who works
`
`regularly with and reports directly or indirectly to a Designated In-house
`
`Counsel.
`
`10.
`
`Unless otherwise directed by the Court or authorized in writing by the Producing
`
`Party, all OUTSIDE COUNSEL’S EYES ONLY Disclosures may be disclosed by the Receiving
`
`Party only to the Qualified Persons identified in Subparagraphs (a)-(g) of Paragraph 9, save that
`
`in each instance in which those Subparagraphs refer to CONFIDENTIAL Disclosures, those
`
`Subparagraphs shall be construed, solely for purposes of this Paragraph 10, as referring to
`
`OUTSIDE COUNSEL’S EYES ONLY Disclosures. OUTSIDE COUNSEL’S EYES ONLY
`
`Disclosures may not be disclosed to Designated In-House Counsel, including under subparagraphs
`
`9(h)-(j) of this Protective Order.
`
`11.
`
`It is expressly understood that the number or identity of Qualified Persons may be
`
`modified by unanimous agreement of the Parties to the Action and any Third Party(ies) that have
`
`produced Disclosures in the Action without leave of Court, or upon a showing by any Party or
`
`Third Party, subject to the approval of the Court that such modification is necessary.
`
`12.
`
`Nothing contained in this Protective Order shall preclude a Party from using its own
`
`Protected Material in any manner.
`
`IV. Designation of Disclosures.
`
`13.
`
`All Disclosures to be produced in tangible form that the Producing Party wishes to
`
`designate as CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY must, prior to
`
`production to the Receiving Party, be labeled on each page by the Producing Party with the legend
`
`CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY (or similar legend), respectively.
`
`Anything that cannot be so marked shall be marked by placing the appropriate legend in the file
`
`name or on a container or package in which the thing is produced or on a tag attached thereto, as
`
`
`
`14
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 15 of 32 PageID #: 15756
`
`applicable. Each page of each document produced in discovery shall, to the extent practicable, bear
`
`a prefix identifying the Producing Party and a unique identifying number. Likewise, each discrete
`
`unit of each tangible item produced in discovery shall, to the extent practicable, also bear a prefix
`
`identifying the Producing Party and a unique identifying number.
`
`14.
`
`Any Disclosure provided for inspection in this Action is to be treated as “OUTSIDE
`
`COUNSEL’S EYES ONLY” pending the copying and delivery of any copies of the same by the
`
`Producing Party to the Receiving Party. After copies are delivered to the Receiving Party, the
`
`information in such documents or things will be treated in a manner consistent with the legend on
`
`each document or thing. If no copies of Disclosures are requested in connection with an inspection,
`
`or if the Receiving Party memorializes the Disclosures during the inspection in some other fashion
`
`(e.g., notes, photographs, drawings), the Disclosures shall be treated as “OUTSIDE COUNSEL’S
`
`EYES ONLY” for seven (7) calendar days following the inspection, by which time the Producing
`
`Party must provide a written notice designating the Disclosures in the inspection as
`
`CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY, as appropriate. Inspection of
`
`documents or things by any Party shall be conducted by Outside Counsel and/or Experts.
`
`15.
`
`After the Protective Order is entered by the Court, a copy of the Protective Order
`
`shall be served along with any Third-Party subpoena or other request for Disclosure to a Third
`
`Party served or sent in connection with this Action. For a period of fourteen (14) days from the
`
`date of the production of any Disclosures in response to a Third-Party subpoena or request or after
`
`the receipt of a final transcript of a deposition pursuant to such subpoena or request, the Documents
`
`and testimony shall be treated as OUTSIDE COUNSEL’S EYES ONLY. During that 14-day
`
`period, the Disclosing Party may designate such Documents and testimony as CONFIDENTIAL
`
`or OUTSIDE COUNSEL’S EYES ONLY, as appropriate.
`
`
`
`15
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 16 of 32 PageID #: 15757
`
`16.
`
`Testimony from any depositions or portions of any depositions taken in this Action
`
`may be designated as CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY.
`
`Confidentiality designations for depositions shall be made either on the record or by written notice
`
`to the other Party within 10 days of receipt of the final transcript. Unless otherwise agreed,
`
`depositions shall be treated as OUTSIDE COUNSEL’S EYES ONLY during the 10-day period
`
`following receipt of the transcript. A deponent may review the transcript of his or her deposition
`
`at any time. The deposition of any witness (or any portion of such deposition) that involves the
`
`disclosure of Protected Material shall be taken only in the presence of persons who are qualified
`
`to have access to such Protected Material pursuant to this Protective Order. Persons other than the
`
`witness, the court reporter, the persons qualified to have access to such Protected Material
`
`information pursuant to this Protective Order, and counsel for the witness (if a Third Party witness)
`
`must not be present during any portion of a deposition that involves the disclosure of Protected
`
`Material. The failure of individuals who are not qualified to have access to leave the deposition
`
`room during any portion of the deposition which inquires into matters deemed CONFIDENTIAL
`
`or OUTSIDE COUNSEL’S EYES ONLY by the Designating Party shall constitute justification
`
`for counsel to instruct the witness that he or she shall not answer the question(s) posed. However,
`
`the Parties (and/or Third Party, if applicable) will work to structure depositions in a way that
`
`minimizes disruption due to the use of any Protected Material that would require certain
`
`individuals to leave the deposition room as noted above.
`
`17.
`
`This Protective Order shall not prevent counsel from examining a witness in a good-
`
`faith effort to determine whether he or she authored, received, or previously had access to or
`
`knowledge of CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY information.
`
`
`
`16
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 17 of 32 PageID #: 15758
`
`V.
`
`Inadvertent Production/Use of CONFIDENTIAL or OUTSIDE COUNSEL’S EYES
`ONLY Information and Changes in Designation.
`
`18.
`
`Inadvertent production of any Disclosure without a designation as
`
`CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY will not be deemed to waive a later
`
`claim as to its confidentiality or stop the Producing Party from designating said Disclosure as
`
`CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY at a later date. If a Producing Party
`
`inadvertently does not provide a Designation to a Disclosure, or inadvertently misdesignates or
`
`mislabels a Disclosure, the Producing Party may inform the Receiving Party of the correct
`
`designation, and the Receiving Party shall treat the information in accordance with the correct
`
`designation. Promptly following such notice, the Producing Party shall provide properly
`
`designated documents or tangible items, if applicable. Upon receipt of such notice, the Receiving
`
`Party shall (i) take reasonable steps to notify any persons known to have possession of any material
`
`with the original designation of the effect of such a change in designation under this Protective
`
`Order, (ii) promptly destroy or cause to be destroyed all copies and transcriptions of such originally
`
`designated material from any persons known to have possession of any such originally designated
`
`material who are not Qualified Persons under Paragraph 9 above to the extent practicable,
`
`including any copies or notes using the originally designated material, and (iii) substitute properly
`
`designated copies for those previously received.
`
`19.
`
`Should any material labeled as CONFIDENTIAL or OUTSIDE COUNSEL’S
`
`EYES ONLY information be disclosed by a Receiving Party to any person not authorized to have
`
`access to such information under this Protective Order, the Receiving Party shall:
`
`(a)
`
`use its best efforts to obtain the prompt destruction of any such Protected
`
`Material and to bind such person to the terms of this Protective Order;
`
`
`
`17
`
`

`

`Case 1:23-cv-00089-TSK Document 110-1 Filed 02/23/24 Page 18 of 32 PageID #: 15759
`
`(b)
`
`within three (3) business days of the discovery of such disclosure, inform
`
`such person of the provisions of this Protective Order and identify such
`
`person to the Producing Party; and
`
`(c)
`
`request such person to sign a Written Assurance in the form of Exhibit A
`
`attached hereto. If executed, the Written Assurance shall be served upon
`
`counsel of record for the Producing Party within three (3) business days of
`
`its receipt by the Receiving Party.
`
`This Paragraph shall not prevent the Producing Party from applying to the Court for further relief.
`
`VI. Use of CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY Information in
`Filings.
`
`20.
`
`If the CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY information of
`
`a Producing Party is to be filed with this Court in connection with any proceeding in this Action,
`
`it shall be filed under seal in accordance with the provisions of Northern District of West Virginia
`
`Local Rule 26.05(b) or such other Order as may be made by the Court. All such documents so
`
`filed shall be released from confidential treatment only upon further order of the Court.
`
`VII. Challenging Designation of CONFIDENTIAL or OUTSIDE COUNSEL’S EYES
`ONLY Information.
`
`21.
`
`A Party may receive information designated pursuant to this Protective Order
`
`without prejudice to its ability to later challenge the designation. A Party may challenge
`
`Disclosures on the ground that they have not been properly designated under the terms of this
`
`Protective Order. Prior to bringing such a challenge, however, the Receiving Party sha