The parties will make all disclosures required by Rule 26(a)(2)(B), as modified by the provisions of this stipulation, at the respective times provided by this Court for the service of each side’s written expert reports.

To the extent that the disclosures required by Rule 26(a)(2)(B) include exhibits, information or data processed or modeled by computer at the direction of a disclosed expert in the course of forming the expert’s opinions, machine readable copies of the data along with all computer programs and instructions that are necessary to replicate the data used by the expert shall be produced to all Parties within five days1 after the disclosure(s) are made, provided that no party needs to produce computer programs that are reasonably commercially available and provided further that databases and computer programs that (i) are used in the ordinary course of a party’s business and (ii) are not practicable to copy need not be produced so long as reasonable access is timely offered for purposes of replication and analysis of disclosed results.

The disclosure obligations of paragraph 4 above do not apply to any demonstrative exhibits that a testifying expert may seek to use at hearings or trial.

The protections against discovery contained in the preceding paragraphs shall not apply to any communications, documents, or information on which testifying experts rely as a basis for any of their opinions.

Nothing in this stipulation shall be construed to : (a) prevent or prohibit any party from asking an expert questions at deposition or trial concerning (i) facts, theories, methodologies, variables, assumptions, or data relied upon or considered by the expert, (ii) facts, theories, methodologies, variables, assumptions or data not considered, or omitted or excluded, from the expert’s analysis, (iii) testimony given in the action, (iv) any publicly available documents or information, or (v) the substance of the expert’s opinions; (b) prevent or prohibit any party from asking questions at depositions or in trial concerning the names, titles, and educational backgrounds of the consulting experts or staff that assisted testifying experts in preparing their reports or disclosures; (c) prevent or prohibit any party from asking questions at deposition or trial concerning the hourly rate of the testifying experts and their staff for their work in this litigation; (d) prevent or prohibit any party from asking questions at deposition or trial concerning the amount of money billed for the work of testifying experts and their staff; (e) prevent or prohibit any party from asking questions at deposition or trial concerning the amount of time that testifying experts and their staff have spent on an expert’s report and the expert’s associated work; (f) prevent or prohibit any party from asserting the attorney-client privilege, work- product protection, or any other applicable privilege, doctrine, or rule of law; or (g) prevent or prohibit any party from challenging an expert’s qualifications or the admissibility of their opinion or report.

This docket entry was made by the Clerk on Monday, December 30, 2024: MINUTE entry before the Honorable Matthew F. Kennelly: The Court has reviewed the parties' disputed positions regarding the proposed preservation order, HIPAA protective order, and ESI protocol and rules as follows.

(2) HIPAA protective order (dkt.209): (a) The Court adopts plaintiffs' proposal regarding the scope of Highly Confidential designations.

The caveat, however, is that if the defendants over−designate material as Highly Confidential, the Court will entertain a request to remove the limitation on access by in−house counsel.

(3) ESI protocol (dkt. 211): (a & b) The Court adopts defendants' position on the "search proposal timing" and "thread suppression" issues.

(c & d) The Court adopts plaintiffs' position on the "lesser included emails" and "deleted, destroyed, or overwritten materials" issues.