Kozusko v. C. R. Bard, Inc. ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA DEBORAH KOZUSKO, Plaintiff, 8:19CV397 vs. PROTECTIVE ORDER C. R. BARD, INC., and BARD PERIPHERAL VASCULAR, INC., Defendants. The parties agree to continue to be bound by the stipulated protective ordered filed on the MDL docket on November 10, 2015, in the United States District Court for the District of Arizona. (Filing No. 23, at CM/ECF p. 11). IT IS SO ORDERED, The stipulated protective order (attached) remains in effect. Dated this 6th day of November, 2019. BY THE COURT: s/ Cheryl R. Zwart United States Magistrate Judge Vase 2.10-MG-U4041-DG0C VLoOCcuMEeNnt 2609 Filed Li/i0/Lo Page 1 Of 224 4 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 || IN RE: MD No. 2641 9 | BARD IVC FILTERS STIPULATED PROTECTIVE 19 | PRODUCTS LIABILITY LITIGATION | ORDER 1] 12 13 The parties, through their respective counsel, stipulate to the entry of a protective 14 |) order to govern the dissemination of documents, materials, and other information, 15 || including the substance and content thereof, designated by any party as confidential and 16 || produced by any party in support of motions, in response to written discovery, or during 17 || any formal or informal discovery in this litigation subject to the terms as set forth below. 18 WHEREAS, the defendants to this action, through their counsel, have requested of 19 || the plaintiffs that a protective order preserving the confidentiality of certain documents 20 || and information should be entered by the Court. 21 THEREFORE, [IT IS ORDERED as follows: 22 | I. Definitions 23 I. Confidential Information. “Confidential Information” is defined herein as 24 || any information that constitutes, reflects, discloses, or contains: (1) a “trade secret” or 25 || other confidential research, development, or commercial information” that is suitable for 26 || protection under Federal Rule of Civil Procedure 26(c)(1)(G); and (2) information that 27 || may be protected from disclosure under a party’s constitutional right of privacy such as 28 Case zi lo-md-U4041-DGC Document 2609 Filed LI/LO/Lo Page 2 Of 22 1 || confidential and private psychiatric, psychological, medical condition and/or employment 2 || information. 3 2. Trade Secret. A party, in designating information “Confidential” because 4 || it contains a “Trade Secret”, shall designate only information that meets the definition of 5 || trade secret contained in 18 U.S.C.A. §1839 (West): 6 the term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including 7 patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedhtes, programs, or 8 codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, 9 photographically, or in writing if -- 10 (A) the owner thereof has taken reasonable measures to keep such information secret; and Il (B) the information derives independent economic value, actual or _ 12 potential, from not being generally known to, and not being readily i ascertainable through proper means by, the public, 3, This Action. “This Action” means IN RE: BARD IVC FILTERS 14 PRODUCTS LIABILITY LITIGATION, MDL No. 2641, pending in the transferee 15 district, the United States District Court District of Arizona, as per the Transfer Order 16 issued by the United States Judicial Panel on Multidistrict Litigation on August 17, 2015 17 (Doc. 31) and all cases filed in or transferred to the District of Arizona as a result of the 18 Transfer Order in the above captioned matter. 19 II. Information Within the Scope of the Protective Order 20 4, This Protective Order shall govern all hard copy and electronic materials, 21 the information contained therein, and all other information produced or disclosed during 22 This Action, including all copies, excerpts summaries, or compilations thereof, whether 23 revealed in a document, deposition, other testimony, discovery response or otherwise, by 24 any party to This Action or its representatives (the “Supplying Party”) to any other party 25 or parties to This Action or their representatives (the “Receiving Party”), whether 26 provided voluntarily, pursuant to formal discovery procedures, or otherwise. 27 28 Case€ ¢4.lo-Md-U4041-Lisl Vocument 209 Filed 11/10/lo Frage 5 Of 42 | 5, The scope of confidentiality protections afforded under this Protective Order 2 || does not include any trial exhibits or trial testimony entered into evidence during the case 3 || known as Phillips v. C.R. Bard, Inc., et al., No. 3:12-cv-00344-RCJ-WGC (D. Nev. June 4 || 1, 2015) (See, Exhibit C, Order denying Bard’s motion to seal trial exhibits and trial 5 || transcripts, Doc. No. 328). Notwithstanding the foregoing, this Protective Order does not 6 || address or alter whether or not Defendants may argue that non-confidential documents 7 || should still be entitled to protection under the work-product doctrine and/or the attorney- 8 || client communication privilege. 9 | Il. Designating Information As “Confidential” Pursuant to This Protective Order 10 6. Documents. Any Supplying Party producing documents that contain 11 || information that meets the definition of Confidential Information as provided in 12 || Paragraph 1 and 2 herein, may designate the contents of the documents as “Confidential” 13 || prior to or at the time of production by placing the following designation on the 14 |) documents: “CONFIDENTIAL — Subject to Protective Order”, Where a document 15 || consists of more than one page, each page of the document shall be designated as such. 16 || Any document or information for which it is impracticable or impossible to affix such a 17 || legend may be designated by written notice to that effect with a reasonable description of 18 || the material in question including a BATES number, where applicable. 19 7. Ifa Supplying Party makes documents or information available for 20 || inspection, rather than delivering copies to another party, no “Confidential” designation is 21 || required in advance of the initial inspection. For the purposes of initial inspection only, 22 || the documents shall be considered “CONFIDENTIAL”. Upon production of the 23 || inspected documents, the Supplying Party shall designate which of the produced or copied 24 || documents and materials are or contain Confidential Information pursuant to Paragraph 6 25 || of this Order. 26 8. Written Discovery. If responses to written discovery contain Confidential 27 || Information as defined in Paragraph 1 and 2 of this Protective Order, the Responding 28 || Party may designate the responsive documents and information, as set forth in Case lo-md-U4041-DGC Document 469 Filed 11/10/1lo Page 4 of 42 1 || Paragraph 6, with specific indication of the page and line references of the material that is 2 || “Confidential” under the terms of this Protective Order. 3 9. Depositions. The parties may designate as Confidential any deposition 4 || transcript, or portions thereof, in This Action that meets the definition of Confidential 5 || Information provided in Paragraphs 1 and 2 of this Protective Order, Counsel for the 6 || designating party shall advise the court reporter and the parties on the record during the 7 || deposition or by letter no later than thirty (30) calendar days after the court reporter 8 || provides the parties with the final deposition transcript. If any portion or all of a 9 || deposition transcript is designated as Confidential Information, the court reporter shall 10 || label the cover page of the original and one copy of the transcript to state that Confidential 11 || Information is contained therein, and shall label as “Confidential” each page of the 12 || transcript and/or exhibits to the deposition transcript that constitute “Confidential 13 || Information”. Confidential designations of transcripts or portions thereof, apply to audio, 14 || video, or other recordings of the testimony. The court reporter shall clearly mark any IS || transcript or portion thereof prior to the expiration of the 30-day period as “DO NOT 16 | DISCLOSE — SUBJECT TO FURTHER CONFIDENTIALITY REVIEW.” Deposition 17 |) transcripts or portions thereof will be treated as Confidential Information until expiration 18 || of the 30-day period. If any party does not designate the transcript as “Confidential” 19 || either at the time of the deposition or within the 30-day period defined above, no portion 20 || of the entire transcript will be deemed “Confidential” and the “DO NOT DISCLOSE- 21 | SUBJECT TO FURTHER CONFIDENTIALITY REVIEW?” legend shall be removed. 22 || The 30-day period may not be extended without mutual agreement of the parties. 23 10. Confidential Information Produced By Third Parties. A party in This 24 || Action may designate as Confidential any document, information, or testimony produced 25 || or supplied by any person or entity not a party to This Action, that constitutes or meets the 26 || definition of Confidential Information as defined in Paragraphs 1 and 2 of this Protective 27 || Order. The party claiming confidentiality shall designate the information as such within 28 || thirty (30) days of its receipt of such information. Any party receiving information from a Case 2:1lo-md-02641-DGC Document 469 Filed i1/10/la Page a of éeé || third party shall treat such information as Confidential Information during this thirty (30) 2. || day period while all parties have an opportunity to review the information and to 3 || determine whether it should be designated as confidential. Any party designating third 4 || party information as Confidential Information shall have the same rights, duties, and 5 || obligations, as a Supplying Party under this Protective Order. 6 11. Publicly Available Information. The confidentiality restrictions and 7 || confidentiality obligations set forth herein shall not apply to information that is at the time 8 || of production or disclosure, or subsequently becomes, through no wrongful act on the part 9 || of the Receiving Party, generally available to the public through publication or otherwise. 10 || This includes information published during public hearings and trials, if the Supplying 11 || Party does not move to seal or appeal any order denying such motion to seal within the 12 || time permitted under the applicable rules. Notwithstanding the foregoing, this Protective 13 || Order does not address or alter whether or not Defendants may argue that non-confidential 14 || documents should still be entitled to protection under the work-product doctrine and/or the 15 || attorney-client communication privilege. 16 | IV. Limitations on Use of Confidential Information 17 12, All Confidential Information shall be used for the purpose of this lawsuit 18 || only, and except as permitted by this Order, the parties and their respective attorneys, as 19 || well as experts or consultants, shall not give, show, or otherwise divulge or disclose the 20 || Confidential Information, or any copies, prints, negatives or summaries thereof to any 21 || person or entity. Notwithstanding the foregoing provisions of this paragraph, nothing in 22 || this Order shall prevent the use of any of the documents or electronically stored 23 || information (“ESI”) produced pursuant to this Protective Order in other actions brought 24 || by the plaintiffs counsel, so long as a comparable protective order is entered in those 25 || other actions. 26 13. Confidential Information pursuant to this Protective Order shall be treated 27 || by the parties, their counsel, and any other signatory to this Protective Order as being 28 || confidential and private. Any copy of Confidential Information shall have the same status MAO Le RITE EE Ne RUC EOS PN Page OU ee 1 |) as the original. The disclosure and use of Confidential Information shall be confined to 2 || the permissible disclosures and uses set forth in this Protective Order, and no one shall 3 |} disclose or use Confidential Information in a manner inconsistent with the terms and the 4 || intent of this Protective Order. 5 14. Confidential Information may be disclosed only to the following persons 6 || and shall be used solely for the litigation of This Action and may not be disclosed to 7 || anyone not authorized under this paragraph: 8 a. Parties, their representatives, in-house counsel and regular employees 9 who are actively engaged in, or actively overseeing This Action; 10 b. Counsel of record, their associated attorneys, and support staff, 11 including paralegal and secretarial personnel who are working on 12 This Action; 13 Experts and consultants (including their employees/contractors) who 14 are consulted or retained by a party to assist in the litigation of This 15 Action; 16 d. Third-party contractors and their employees who are consulted or 17 retained by one or more parties to provide litigation-support or copy 18 services in connection with the litigation of This Action 19 Witnesses or prospective witnesses in This Action; 20 E Court reporters, videographers, and other persons involved in 21 recording deposition testimony in This Action; 22 g. The Court and its personnel, including any mediators and/or special 23 masters appointed by the Court, or if an appeal, the court with 24 appellate jurisdiction; and 25 h. Jurors in This Action 26 15. Prior to the disclosure of any Confidential Information to any person 27 || identified in Paragraph 14 above (except the Court and its personnel and jurors in This 28 || Action), the disclosing party will provide each potential recipient of Confidential Case 2:15-md-02641-DGC Document □□□ Filed Li/L0/15 Page / Olze 1 || Information with a copy of this Protective Order, which said recipient shall read. Upon 2 || reading this Protective Order, such person shall sign an Acknowledgment, annexed to this 3 || Protective Order as Exhibit A, acknowledging that he or she has read this Protective 4 || Order and shall abide by its terms. Notwithstanding the foregoing provision, Confidential 5 || Information may be disclosed to a witness who will not sign an Acknowledgment in a 6 || deposition at which the party who has designated the Confidential Information is 7 || represented or has been given notice that Confidential Information produced by the party 8 || may be used. These Acknowledgments are strictly confidential and shall be maintained 9 || by counsel for each party and only with good cause shown and separate court order will 10 || the Acknowledgments be disclosed to the opposing side. Persons who come into contact 11 || with Confidential Information for clerical or administrative purposes, and who do not 12 || retain copies or extracts thereof, are not required to execute Acknowledgments but must 13 || comply with the terms of this Protective Order. 14 16. □□□ persons receiving or given access to Confidential Information in 15 || accordance with the terms of this Order consent to the continuing jurisdiction of this Court 16 || for the purposes of enforcing this Order and remedying any violations thereof. 17 17. Confidential Information shall not be placed or deposited in any sort of data 18 || bank that is made available for indiscriminate or general circulation to lawyers, litigants, 19 || consultants, expert witnesses or any other persons not working on This Action and not 20 || signatories to this Protective Order. This paragraph and the other provisions of this Order 21 || shall not apply to materials which, if challenged by any party, the Court rules are not 22 || entitled to protection. This paragraph does not limit or restrict in any way the manner in 23 || which a party may store and make Confidential Information available to the attorneys, 24 || support staff, experts, and any other persons or entities working on This Action, provided 25 || the general terms of this Order are followed. 26 18. The parties and their counsel as well as their technical consultants and 27 || experts shall also not sell, offer, advertise, publicize nor provide under any condition any 28 || Confidential Information produced by any other party to any competitor of any defendant Case 2)1o-mMd-04041-DGC Document 2oy Filed 11/10/15 Page o Of 44 | || or to any employee or any competitor (irrespective of whether they are retained as an 2 || expert by a party in This Action). 3 19. In the event that either of the parties is served by a non-party with a 4 || subpoena for Confidential Information that was originally provided and claimed as 5 || Confidential by another party, the Receiving Party will give notice to the Supplying Party, 6 || where reasonably possible, no less than ten (10) business days prior to disclosure by 7 || providing a copy of the subpoena, to allow a reasonable opportunity for the Supplying 8 || Party to object to such production before any production takes place. 9 20. Ifa Receiving Party learns of any unauthorized disclosure of Confidential 10 |) Information, it shall take reasonable efforts to immediately (a) inform the Supplying Party 11 || in writing of such disclosure, including to whom the material was disclosed; (b) make a 12 || reasonable effort to retrieve all copies of the Confidential Information only to the extent 13 || the Receiving Party has control over the unauthorized disclosed documents; (c) and to the 14 || extent the Receiving party has control over the person or persons to whom unauthorized 15 || disclosures were made, inform the persons of the terms of this Protective Order. 16 || V. Changes In and Objections to Designation of Information 17 21. Inadvertent Disclosure of Confidential Information. If a Supplying Party 18 || through inadvertence produces any documents containing Confidential Information 19 || without designating the documents as such in accordance with Paragraph 6 of this 20 || Protective Order, such inadvertence does not waive any claim for confidentiality that the 21 || Supplying Party may possess so long as the Supplying Party notifies the Receiving Party 22 || of the Confidential Information designation in writing within twenty (20) days of the date 23 || that the Supplying Party became aware or reasonably should have become aware of the 24 || failure to designate the information as Confidential Information. Ifa Supplying Party fails 25 || to designate information as Confidential Information within this twenty (20) day period, 26 || the Supplying Party waives its right to designate the documents as Confidential 27 || Information. The Supplying Party shall also supply the Receiving Party with a new copy 28 || of the documents designated in accordance with Paragraph 6 of this Protective Order, Case ¢ 2 | 20 == = : = ROBERT JONES 21 United States District Judge 22 23 3 3 of3