`Case 1:23-cv-00089-TSK Document 99-1 Filed 02/14/24 Page 1 of 29 PagelD #: 4091
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`EXHIBIT A
`EXHIBIT A
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`Case 1:23-cv-00089-TSK Document 99-1 Filed 02/14/24 Page 2 of 29 PageID #: 4092
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`CLARKSBURG DIVISION
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`Plaintiff,
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`v.
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`REGENERON PHARMACEUTICALS, INC.,
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`FORMYCON AG,
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`
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`Defendant.
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`Civil Action No. 1:23-cv-00097-TSK
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`[PROPOSED] STIPULATED PROTECTIVE ORDER
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`Pursuant to Northern District of West Virginia Local Rule 26.05, and upon agreement of
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`the Parties for an order pursuant to Federal Rule of Civil Procedure 26(c), Plaintiff Regeneron
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`Pharmaceuticals, Inc. (“Regeneron”) and Defendant Formycon AG (“Formycon”) (each a “Party”
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`and collectively the “Parties”), hereby stipulate to the entry of this Protective Order concerning the
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`confidentiality of documents and other information that has been or will be exchanged between
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`the Parties during discovery in the above-captioned action (the “Action”) and the Court orders as
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`follows. Formycon’s stipulation to this Protective Order is made without prejudice to its standing
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`objections to personal jurisdiction and venue, set forth in its January 17, 2024 motion papers.
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`I.
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`Definitions.
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`1.
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`As used in this Protective Order, these terms have the following meanings:
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`(a)
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`“Patents-in-Suit” refers to United States Patents that Regeneron has claimed
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`Formycon infringes as set forth in the operative complaint in this Action;
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`(b)
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`“Action” means the case captioned Regeneron Pharmaceuticals, Inc. v.
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`Formycon AG, Case No. 1:23-cv-00097-TSK, which is currently pending
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`in the Northern District of West Virginia;
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`(c)
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`“Affiliate” means any Third Party that, directly or indirectly, through one
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`or more intermediaries controls, or is controlled by, or is under common
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`control with, a Party to this Action;
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`(d)
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`“CONFIDENTIAL” information includes information that constitutes,
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`contains, reveals, or reflects trade secrets or other confidential research,
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`development, business, or commercial information within the meaning of
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`Federal Rule of Civil Procedure 26(c)(1)(G), including but not limited to:
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`scientific and technical information; financial (including pricing and sales
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`information), budgeting and/or accounting information; information about
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`existing and potential customers; marketing and other business strategies,
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`decisions or negotiations; employee compensation, evaluation and other
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`employment information; business plans; manufacturing information;
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`licensing agreements; regulatory
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`information (including non-public
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`correspondence with the United States and foreign patent offices and
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`regulatory agencies); and information that concerns or relates to the trade
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`secrets, processes, operations, style of work, or apparatus, or to the
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`production, sales, shipments, purchases,
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`transfers,
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`identification of
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`customers, inventories, amount or source of any income, profits, losses, or
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`expenditures of any person, firm, partnership, corporation, or other
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`organization; and any other information that is protected from disclosure by
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`the laws of the United States or another country; and includes such
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`confidential and proprietary information about a Third Party, including
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`parents, subsidiaries, and/or other Affiliates; “Personal Data,” and any other
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`2
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`information, as defined below, the disclosure of which would harm the
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`competitive position of the Producing Party if the information becomes
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`known to a person or party other than the Producing Party other than as
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`permitted hereunder;
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`(e)
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`“CONTROLLED HIGHLY CONFIDENTIAL INFORMATION” means
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`any Disclosure responsive to a subpoena where such Disclosure contains
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`extremely sensitive and highly confidential and proprietary trade secret
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`information deserving even further limitation on its production than
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`OUTSIDE COUNSEL’S EYES ONLY Disclosures. The designation
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`CONTROLLED HIGHLY CONFIDENTIAL INFORMATION may be
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`abbreviated as “CHCI” or “CHCI Disclosure;”
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`(f)
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`“Designated In-house Counsel” means an attorney, or member of an in-
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`house legal division, who is an employee of a Party or a Party’s Affiliate
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`and is designated in accordance with Paragraph 9(h);
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`(g)
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`“Designating Party” is a Party or Third Party that designates information or
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`items that it produces in Disclosures as “CONFIDENTIAL,” “OUTSIDE
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`COUNSEL’S EYES ONLY,”
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`or
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`“CONTROLLED HIGHLY
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`CONFIDENTIAL INFORMATION”;
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`(h)
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`“Disclosure(s)” means all documents; written discovery requests and
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`responses; deposition transcripts; correspondence between the Parties;
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`pleadings; exhibits; documents and things made available for inspection;
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`expert testimony and reports; biological materials produced by a Party or
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`Third Party in this Action including, but not limited to, any physical samples
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`3
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`of cells, polynucleotides, or proteins; all other discovery taken pursuant to
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`the Federal Rules of Civil Procedure, including Third Party discovery
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`pursuant to Federal Rule of Civil Procedure 45; and tangible items and any
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`other information produced or disclosed between the Parties in connection
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`with this Action, including the pre-suit exchanges made pursuant to 42
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`U.S.C. § 262(l). For the sake of clarity, the production of biological samples
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`shall be governed by the terms set forth in Paragraph 45;
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`(i)
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`“Document(s)” means all materials within the scope of Federal Rule of Civil
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`Procedure 34(a);
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`(j)
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`“Expert” is a person with specialized knowledge or experience in a matter
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`pertinent to the Action who (1) has been retained by a Party or its Outside
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`Counsel to serve as an expert witness or as a consultant in this Action, (2)
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`is not a current employee of a Party, (3) at the time of retention, is not
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`anticipated to become an officer, director, or employee of a Party. Nothing
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`in this Protective Order purports to alter the requirements for offering
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`testimony under Federal Rule of Evidence 703, or to define the term
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`“expert” for purposes other than those addressed in this Protective Order;
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`(k)
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`“In-House Counsel” means an in-house attorney, or member of an in-house
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`legal division, who is an employee of a Party to this Action or a Party’s
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`Affiliate;
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`(l)
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`“Third Party” is any natural person, partnership, corporation, association,
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`or other legal entity that is not a Party or a Party’s Affiliate;
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`4
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`(m)
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`“Outside Counsel” means the external lawyers retained by the Parties to
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`litigate this Action and who have appeared in this Action or are acting at the
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`direction of a lawyer who has appeared in this Action, including, but not
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`limited to, outside attorneys admitted pro hac vice in this Action and
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`paralegals, assistants and other employees of the respective law firms of
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`Outside Counsel;
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`(n)
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`“OUTSIDE COUNSEL’S EYES ONLY” information means highly
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`sensitive information relevant to the Designating Party’s current or
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`prospective products, scientific or
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`technical
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`information, business
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`information of current or prospective significance and for which production
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`on a confidential basis, even to In-house Counsel, would create a substantial
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`risk of serious harm to the Designating Party that could not be avoided by
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`less restrictive means. The OUTSIDE COUNSEL’S EYES ONLY
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`designation is intended to be used sparingly. For clarity, the OUTSIDE
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`COUNSEL’S EYES ONLY designation shall not be applied to materials
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`disclosed in exchanges made pursuant to 42 U.S.C. §262(l) that were not
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`designated OUTSIDE COUNSEL’S EYES ONLY or CONTROLLED
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`HIGHLY CONFIDENTIAL INFORMATION.
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`(o)
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`“Party” means any party to this Action, including all of its officers,
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`directors, employees;
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`(p)
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`“Personal Data” means any information that a Party believes in good faith
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`to be subject to data protection laws or other privacy obligations. In
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`particular, such data protection laws include the European Union General
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`5
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`Data
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`Protection
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`Regulation
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`(“GDPR”),
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`the
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`German
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`Bundesdatenschutzgestetz, and the South Korea Personal Information
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`Protection Act (“PIPA”) and any amendments thereof, including the latest
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`amendment that took effect in September 2023. “Personal Data” shall mean
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`all information relating to an identified or (directly or indirectly) identifiable
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`person (“Data Subject”) originating from or processed in, inter alia, the
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`European Union/European Economic Area or South Korea. “Personal
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`Data” includes but is not limited to the Data Subject's name, location data
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`(such as an address or a phone number) or online identifiers (such as email
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`or IP addresses). All of the provisions in the Protective Order applicable to
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`CONFIDENTIAL information will apply equally to Personal Data;
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`(q)
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`“Producing Party” is any Party or Third Party that produces or provides a
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`Disclosure;
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`(r)
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`“Protected Material”
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`is any Disclosure
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`that
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`is designated as
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`“CONFIDENTIAL,” “OUTSIDE COUNSEL’S EYES ONLY,” or
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`“CONTROLLED HIGHLY CONFIDENTIAL INFORMATION”;
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`(s)
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`“Prosecution” means any participation in and/or contribution to drafting,
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`amending, or modifying patent claims in the U.S. Patent & Trademark
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`Office (“USPTO”) and/or a foreign patent office, including during an inter
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`partes review (“IPR”) or post grant review (“PGR”), or any other
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`proceeding before a domestic and/or foreign agency, or advising a Party or
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`other entity regarding drafting, amending, or modifying patent claims. For
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`the sake of clarity, “Prosecution” does not include participation in a
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`6
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`challenge or in defense of a patent before a domestic or foreign agency
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`(including but not limited to participation in IPR proceedings, PGR
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`proceedings, an International Trade Commission (“ITC”) proceeding, inter
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`partes reexamination, ex parte reexamination, reissue, certificates of
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`correction, opposition at the European Patent Office (“EPO”), or other post-
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`grant review proceedings), provided, however, that such participation does
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`not involve, directly or indirectly, drafting, amending, or modifying of
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`patent claim(s);
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`(t)
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`(u)
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`(v)
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`“Protective Order” means this Stipulated Protective Order;
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`“Receiving Party” is any Party or Third Party receiving a Disclosure;
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`“Third Party” means a person or entity that is not a Party; and
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`(w)
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`“Written Assurance” means an executed document in the form attached as
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`Exhibits A or B.
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`II.
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`Scope.
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`2.
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`The protections conferred by this Protective Order cover not only Protected
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`Material (as defined above), but also (1) any information copied or extracted from Protected
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`Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any
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`testimony, conversations, or presentations by Parties or their counsel that disclose the substance
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`of Protected Material.
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`3.
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`The protections conferred by this Protective Order do not cover the following
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`information: (a) any information that is in the public domain at the time of disclosure to a
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`Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
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`a result of publication not involving a violation of this Protective Order, including becoming part
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`of the public record through trial or otherwise; and (b) any information known to the Receiving
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`7
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`Party prior to the disclosure or obtained by the Receiving Party from a source who obtained the
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`information lawfully and under no obligation of confidentiality to the Designating Party.
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`4.
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`The Parties shall meet and confer regarding the use of Protected Material at trial,
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`which may be governed by a separate agreement or order.
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`III. Access to CONFIDENTIAL and OUTSIDE COUNSEL’S EYES ONLY Disclosures.
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`5.
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`A Producing Party may designate as “CONFIDENTIAL” or “OUTSIDE
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`COUNSEL’S EYES ONLY” any Disclosure made to any Party in connection with this Action,
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`including any appeal(s) therefrom or any remands thereto, in accordance with this Protective
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`Order.
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`6.
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`Subject to Paragraphs 2 and 10, no person receiving CONFIDENTIAL or
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`OUTSIDE COUNSEL’S EYES ONLY Disclosures shall, directly or indirectly, disclose or
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`communicate in any way their contents to any person who is not a Qualified Person permitted to
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`receive such Disclosures under this Protective Order.
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`7.
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`All Protected Material shall be used solely for this Action, including any appeal(s)
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`therefrom or any remands thereto. Protected Material may not be used under any circumstances
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`for a related, separate or foreign action or proceeding, prosecution of any patent application, patent
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`licensing or for any other purpose, including without limitation for any research, development,
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`commercial, marketing, regulatory, or other competitive purpose, including in connection with
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`communications, negotiations or agreements with health care providers, patients, customers, third-
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`party payors or formularies. All persons receiving Protected Material are expressly prohibited
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`from using or disclosing such information in connection with any practice before or
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`communication with the USPTO, the United States Food and Drug Administration (“FDA”), the
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`United States Pharmacopoeia (“USP”), or their counterpart organizations in any foreign
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`jurisdiction.
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`8
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`8.
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`Nothing in this Protective Order shall restrict any Party’s counsel from rendering
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`advice to its clients with respect to this Action that is generally informed by Protected Material,
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`provided, however, that in rendering such advice, counsel shall not disclose any other Party’s
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`Protected Material other than in a manner provided for in this Protective Order.
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`9.
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`Unless otherwise directed by the Court or authorized in writing by the Producing
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`Party, all CONFIDENTIAL Disclosures may be disclosed by the Receiving Party only to the
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`following Qualified Persons:
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`(a)
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`the Court, its officers, and any members of its staff to whom it is necessary
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`to disclose CONFIDENTIAL information contained in CONFIDENTIAL
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`Disclosures for the purpose of assisting the Court in this Action, and
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`stenographic employees, court reporters and typists for the sole purpose of
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`recording or transcribing testimony, documents, or information relating to
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`this Action;
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`(b)
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`the Parties’ Outside Counsel of record in this Action and the paralegals,
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`assistants, other employees and contractors of the respective law firms of
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`Outside Counsel of record in this Action to the extent such persons’ duties
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`and responsibilities require access to CONFIDENTIAL Disclosures and
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`provided that such Outside Counsel has no current involvement and will not
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`have involvement in any of the following activities: (1) prosecution of any
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`domestic or foreign patent or patent application claiming priority to the
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`Patents-in-Suit or any related domestic or foreign patents or patent
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`applications, or any other domestic or foreign patent or patent application
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`relating to aflibercept and/or covering any aflibercept subject matter
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`9
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`disclosed
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`in a Patent-in-Suit;
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`(2) competitive decision making
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`responsibilities for the sales and marketing of aflibercept; (3) competitive
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`decision making responsibilities for research and/or development and/or
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`manufacturing of any aflibercept subject matter disclosed in a Patent-in-
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`Suit; and (4) petitioning FDA, the USP, or any similar foreign or domestic
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`agency concerning aflibercept or any subject matter claimed in a Patent-in-
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`Suit. This Protective Order imposes such a bar on Outside Counsel who
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`have received Confidential Information from engaging in the above
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`activities effective upon its entry by this Court and terminating one (1) year
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`after final termination of this Action.
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`(c)
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`litigation support consultants (including translators, e-discovery, trial
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`graphics, jury focus group consultants, mock jurors), outside copying
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`services, and temporary/contract attorneys retained by Outside Counsel in
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`this Action identified in Paragraph 6(b) with whom such Outside Counsel
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`work in connection with this Action to the extent such persons have
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`expressly agreed to maintain the confidentiality of their work and the
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`CONFIDENTIAL Disclosures they receive, and provided that such
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`personnel are not engaged in the research, development, manufacture,
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`registration, or sale of pharmaceutical products that may be related to the
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`subject matter of the Patents-in-Suit;
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`(d)
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`prior authors or recipients of the CONFIDENTIAL Disclosure;
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`10
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`Case 1:23-cv-00089-TSK Document 99-1 Filed 02/14/24 Page 12 of 29 PageID #: 4102
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`(e)
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`witnesses designated pursuant to Federal Rule of Civil Procedure 30(b)(6),
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`provided that the CONFIDENTIAL Disclosures were designated as
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`(f)
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`(g)
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`CONFIDENTIAL by the Party for which they are testifying;
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`others to whom the Producing Party consents;
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`Experts of the Receiving Party to whom disclosure is reasonably necessary
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`for this litigation, and who have signed a Written Assurance (attached as
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`Exhibit A), and to whom the Disclosing Party does not object within two
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`(2) business days of receiving written notice from the Producing Party of an
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`intent to share CONFIDENTIAL Disclosures with that Expert. Written
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`notice under this sub-paragraph shall include the name and address of the
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`Expert to whom disclosure is to be made, a current resume or curriculum
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`vitae, a copy of the signed Written Assurance (Exhibit A), and a list of cases
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`in which Expert has testified as an expert at trial or deposition within the
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`last four (4) years. Any such objection must be set forth in writing and
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`explain the ground(s) on which such objection is based and be made in good
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`faith. A Party that receives a timely written objection must promptly meet
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`and confer with the objecting Party in person or through telephonic means
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`to attempt to resolve the matter. If the Parties are unable to reach agreement
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`regarding such disclosure, the objecting Party may apply to the Court for a
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`protective order or other appropriate relief no later than five (5) days (as
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`calculated by Federal Rule of Civil Procedure 6) of the original written
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`notice, and no disclosure of CONFIDENTIAL information may be made to
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`the Expert unless and until the Motion is resolved in favor of the Receiving
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`11
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`Party or the objection is withdrawn. New written notice does not need to be
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`provided for Experts already identified and not objected to pursuant to the
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`Parties’ August 2023 Confidentiality Agreement, although such Experts
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`must sign a Written Assurance and provide it to the adverse Party before a
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`Party makes further CONFIDENTIAL Disclosures to such Experts;
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`(h)
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`for each Party, up to five (5) Designated In-house Counsel, who, because of
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`their duties and responsibilities, require access to CONFIDENTIAL
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`Disclosures, provided such Designated In-house Counsel have no current
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`involvement and will not have involvement in any of the following
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`activities: (1) prosecution of any domestic or foreign patent or patent
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`application claiming priority to the Patents-in-Suit or any related domestic
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`or foreign patents or patent applications, or any other domestic or foreign
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`patent or patent application relating to aflibercept and/or covering any
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`subject matter claimed in a Patent-in-Suit; (2) competitive decision making
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`responsibilities for the sales and marketing of aflibercept or other drugs used
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`for ophthalmic indications; (3) competitive decision making responsibilities
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`for the research and/or development and/or manufacturing of aflibercept or
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`any other drugs used for ophthalmic indications; or (4) responsibility for
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`petitioning FDA, the USP, or any similar foreign or domestic agency
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`concerning aflibercept or any aflibercept subject matter disclosed in a
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`Patent-in-Suit. This Protective Order imposes a bar on Designated In-House
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`Counsel who have received Confidential Information from engaging in the
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`12
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`above activities effective upon its entry by this Court and terminating one
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`(1) year after final termination of this Action.
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`(i)
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`A Party may designate In-house Counsel or replace a Designated In-house
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`Counsel by providing to the other Parties an executed acknowledgment in
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`the form attached as Exhibit B which, among other things, (1) sets forth the
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`full name of the Designated In-house Counsel, (2) identifies the Designated
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`In-house Counsel’s current employer, job title and job description, and (3)
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`affirms that the Designated In-house Counsel is not involved in any of the
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`prohibited activities set forth in this Paragraph. A Party that makes a request
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`to designate or replace a Designated In-house Counsel and provides an
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`executed and completed Exhibit B to the other Party’s Outside Counsel may
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`disclose CONFIDENTIAL information to the newly Designated In-house
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`Counsel after five (5) days of delivering the executed Exhibit B (as
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`calculated by Federal Rule of Civil Procedure 6), unless within that five (5)
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`day period, the Party receives a written objection from the objecting Party.
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`Any such objection must set forth in detail the grounds on which such
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`objection is based and be made in good faith. A Party that receives a timely
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`written objection must meet and confer with the objecting Party in person
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`or through telephonic means to attempt to resolve the matter. Following the
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`meet and confer, the objecting Party may apply to the Court for a protective
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`order or other appropriate relief no later than ten (10) days (as calculated by
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`Federal Rule of Civil Procedure 6) after the meet and confer; and
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`13
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`(j)
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`any paralegal, secretarial or clerical employee of each Party who works
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`regularly with and reports directly or indirectly to a Designated In-house
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`Counsel.
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`10.
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`Unless otherwise directed by the Court or authorized in writing by the Producing
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`Party, all OUTSIDE COUNSEL’S EYES ONLY Disclosures may be disclosed by the Receiving
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`Party only to the Qualified Persons identified in Subparagraphs (a)-(g) of Paragraph 9, save that
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`in each instance in which those Subparagraphs refer to CONFIDENTIAL Disclosures, those
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`Subparagraphs shall be construed, solely for purposes of this Paragraph 10, as referring to
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`OUTSIDE COUNSEL’S EYES ONLY Disclosures. OUTSIDE COUNSEL’S EYES ONLY
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`Disclosures may not be disclosed to Designated In-House Counsel, including under subparagraphs
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`9(h)-(j) of this Protective Order.
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`11.
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`It is expressly understood that the number or identity of Qualified Persons may be
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`modified by unanimous agreement of the Parties to the Action and any Third Party(ies) that have
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`produced Disclosures in the Action without leave of Court, or upon a showing by any Party or
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`Third Party, subject to the approval of the Court that such modification is necessary.
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`12.
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`Nothing contained in this Protective Order shall preclude a Party from using its own
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`Protected Material in any manner.
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`IV. Designation of Disclosures.
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`13.
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`All Disclosures to be produced in tangible form that the Producing Party wishes to
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`designate as CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY must, prior to
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`production to the Receiving Party, be labeled on each page by the Producing Party with the legend
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`CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY (or similar legend), respectively.
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`Anything that cannot be so marked shall be marked by placing the appropriate legend in the file
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`name or on a container or package in which the thing is produced or on a tag attached thereto, as
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`14
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`Case 1:23-cv-00089-TSK Document 99-1 Filed 02/14/24 Page 16 of 29 PageID #: 4106
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`applicable. Each page of each document produced in discovery shall, to the extent practicable, bear
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`a prefix identifying the Producing Party and a unique identifying number. Likewise, each discrete
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`unit of each tangible item produced in discovery shall, to the extent practicable, also bear a prefix
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`identifying the Producing Party and a unique identifying number.
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`14.
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`Any Disclosure provided for inspection in this Action is to be treated as “OUTSIDE
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`COUNSEL’S EYES ONLY” pending the copying and delivery of any copies of the same by the
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`Producing Party to the Receiving Party. After copies are delivered to the Receiving Party, the
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`information in such documents or things will be treated in a manner consistent with the legend
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`produced on each document or thing. If no copies of Disclosures are requested in connection with
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`an inspection, or if the Receiving Party memorializes the Disclosures during the inspection in some
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`other fashion (e.g., notes, photographs, drawings), the Disclosures shall be treated as “OUTSIDE
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`COUNSEL’S EYES ONLY” for seven (7) calendar days following the inspection, by which time
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`the Producing Party must provide a written notice designating the Disclosures in the inspection as
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`CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY, as appropriate. Inspection of
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`documents or things by any Party shall be conducted by Outside Counsel and/or Experts.
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`15.
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`After the Protective Order is entered by the Court, a copy of the Protective Order
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`shall be served along with any Third-Party subpoena or other request for Disclosure to a Third
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`Party served or sent in connection with this Action. For a period of fourteen (14) days from the
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`date of the production of any Disclosures in response to a Third-Party subpoena or request or after
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`the receipt of a final transcript of a deposition pursuant to such subpoena or request, the Documents
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`and testimony shall be treated as OUTSIDE COUNSEL’S EYES ONLY. During that 14-day
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`period, the Disclosing Party may designate such Documents and testimony as CONFIDENTIAL
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`or OUTSIDE COUNSEL’S EYES ONLY, as appropriate.
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`15
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`Case 1:23-cv-00089-TSK Document 99-1 Filed 02/14/24 Page 17 of 29 PageID #: 4107
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`16.
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`Testimony from any depositions or portions of any depositions taken in this Action
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`may be designated as CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY.
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`Confidentiality designations for depositions shall be made either on the record or by written notice
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`to the other Party within 10 days of receipt of the final transcript. Unless otherwise agreed,
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`depositions shall be treated as OUTSIDE COUNSEL’S EYES ONLY during the 10-day period
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`following receipt of the transcript. A deponent may review the transcript of his or her deposition
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`at any time. The deposition of any witness (or any portion of such deposition) that involves the
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`disclosure of Protected Material shall be taken only in the presence of persons who are qualified
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`to have access to such Protected Material pursuant to this Protective Order. Persons other than the
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`witness, the court reporter, the persons qualified to have access to such Protected Material
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`information pursuant to this Protective Order, and counsel for the witness (if a Third Party witness)
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`must not be present during any portion of a deposition that involves the disclosure of Protected
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`Material. The failure of individuals who are not qualified to have access to leave the deposition
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`room during any portion of the deposition which inquires into matters deemed CONFIDENTIAL
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`or OUTSIDE COUNSEL’S EYES ONLY by the Designating Party shall constitute justification
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`for counsel to instruct the witness that he or she shall not answer the question(s) posed. However,
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`the Parties (and/or Third Party, if applicable) will work to structure depositions in a way that
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`minimizes disruption due to the use of any Protected Material that would require certain
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`individuals to leave the deposition room as noted above.
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`17.
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`This Protective Order shall not prevent counsel from examining a witness in a good-
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`faith effort to determine whether he or she authored, received, or previously had access to or
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`knowledge of CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY information.
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`16
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`Case 1:23-cv-00089-TSK Document 99-1 Filed 02/14/24 Page 18 of 29 PageID #: 4108
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`V.
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`Inadvertent Production/Use of CONFIDENTIAL or OUTSIDE COUNSEL’S EYES
`ONLY Information and Changes in Designation.
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`18.
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`Inadvertent production of any Disclosure without a designation as
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`CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY will not be deemed to waive a later
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`claim as to its confidentiality or stop the Producing Party from designating said Disclosure as
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`CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY at a later date. If a Producing Party
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`inadvertently does not provide a Designation to a Disclosure, or inadvertently misdesignates or
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`mislabels a Disclosure, the Producing Party may inform the Receiving Party of the correct
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`designation, and the Receiving Party shall treat the information in accordance with the correct
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`designation. Promptly following such notice, the Producing Party shall provide properly
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`designated documents or tangible items, if applicable. Upon receipt of such notice, the Receiving
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`Party shall (i) take reasonable steps to notify any persons known to have possession of any material
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`with the original designation of the effect of such a change in designation under this Protective
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`Order, (ii) promptly destroy or cause to be destroyed all copies and transcriptions of such originally
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`designated material from any persons known to have possession of any such originally designated
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`material who are not Qualified Persons under Paragraph 6 above to the extent practicable, and (iii)
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`substitute properly designated copies for those previously received.
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`19.
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`Should any material labeled as CONFIDENTIAL or OUTSIDE COUNSEL’S
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`EYES ONLY information be disclosed by a Receiving Party to any person not authorized to have
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`access to such information under this Protective Order, the Receiving Party shall:
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`(a)
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`use its best efforts to obtain the prompt return of any such Protected Material
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`and to bind such person to the terms of this Protective Order;
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`17
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`Case 1:23-cv-00089-TSK Document 99-1 Filed 02/14/24 Page 19 of 29 PageID #: 4109
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`(b)
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`within three (3) business days of the discovery of such disclosure, inform
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`such person of the provisions of this Protective Order and identify such
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`person to the Producing Party; and
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`(c)
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`request such person to sign a Written Assurance in the form of Exhibit A
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`attached hereto. If executed, the Written Assurance shall be served upon
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`counsel of record for the Producing Party within three (3) business days of
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`its receipt by the Receiving Party.
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`This Paragraph shall not prevent the Producing Party from applying to the Court for further relief.
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`VI. Use of CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY Information in
`Filings.
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`20.
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`If the CONFIDENTIAL or OUTSIDE COUNSEL’S EYES ONLY information of
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`a Producing Party is to be filed with this Court in connection with any proceeding in this Action,
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`it shall be filed under seal in accordance with the provisions of Northern District of West Virginia
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`Local Rule 26.05(b) or such other Order as may be made by the Court. All such documents so
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`filed shall be released from confidential treatment only upon further order of the Court.
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`VII. Challenging Designation of CONFIDENTIAL or OUTSIDE COUNSEL’S EYES
`ONLY Information.
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`21.
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`A Party may receive information designated pursuant to this Protective Order
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`without