Synthes, Inc. et al v. Knapp

Filing 45

STIPULATION and ORDER ON AGREEMENT FOR THE DISCOVERY OF CONFIDENTIAL INFORMATION FROM K2M, INC. signed by Magistrate Judge Dale A. Drozd on 12/16/14 43 . (Meuleman, A)

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UNITED STATES DISTRICT COURT1

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EASTERN DISTRICT OF CALIFORNIA

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SYNTHES, INC. AND DEPUY SYNTHES
SALES, INC.,

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Plaintiffs /Counterclaim-Defendants,

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No. 2:13-cv-02261-MCE-DAD

vs.
GREGORY KNAPP,

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STIPULATION AND ORDER ON
AGREEMENT FOR THE DISCOVERY
OF CONFIDENTIAL INFORMATION
FROM K2M, INC.

Defendant /Counterclaim-Plaintiff.

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WHEREAS, Plaintiffs/Counterclaim Defendants, Synthes, Inc. and DePuy Synthes Sales,

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Inc. (collectively, “Plaintiffs/Counterclaim Defendants”) and Defendant/Counterclaim Plaintiff,

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Gregory Knapp (“Knapp”), as parties to litigation captioned Synthes, Inc. et al. v. Knapp, Eastern

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District of California, Case No. 2:13-cv-02261-MCE-DAD (the “Litigation”), and third-party K2M,

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Inc. (“K2M”), as the recipient of a subpoena duces tecum pursuant to Federal Rule of Civil

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Procedure 45 (the “Subpoena”), have stipulated to the signing and entry of this Confidentiality

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Agreement for the Discovery of Confidential Information of K2M (the “Agreement”), IT IS

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HEREBY AGREED that each of the parties to this Agreement and their counsel shall be governed

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by the following terms and conditions concerning confidential information produced by or of K2M

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(the “K2M Confidential Information”) in connection with the Litigation and the Subpoena. By

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entering into this Agreement, K2M does not waive any of its objections to the Subpoena or other

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discovery sought from or concerning K2M.

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1.

Information That May Be Designated As Confidential.

K2M, Plaintiffs/Counterclaim

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Defendants, and Knapp agree that K2M may designate as “K2M Confidential Information”

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any of the following in connection with the Litigation or the Subpoenas: (a) documents or

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information produced by K2M at any time; (b) documents or information that pertain to K2M

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that are produced or to be produced by a party or a non-party to the Litigation; (d) deposition,

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hearing, or trial testimony or transcripts of K2M employees, agents, or representatives or

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concerning K2M, or any part thereof; and (e) access to K2M’s premises for inspection or

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information. The agreement to utilize certain definitions of “K2M Confidential Information”

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herein is solely for the purpose of facilitating discovery in the Litigation and in connection

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with the Subpoena and does not constitute, and may not be offered as, an admission by any

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party to this Agreement in any court that any particular category of K2M Confidential

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Information is confidential under the substantive law.

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2.

The restrictions set forth in this Agreement shall not apply to information or tangible items

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which, at or prior to disclosure in the Litigation or in connection with the Subpoena, are or

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were within public knowledge through lawful means, or which, after disclosure, come within

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public knowledge other than by act or omission of the one receiving the K2M Confidential

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Information or its agents, consultants or attorneys.
3.

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Categories of Protected Information.
a.

Basis For Designation Of K2M Confidential Information.

K2M may designate

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Information as “Confidential” based upon a good faith belief that the information

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constitutes or contains information of K2M’s which is not available to the general

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public, including, but not limited to, trade secrets, know-how, proprietary data and/or

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other technical, commercial, business, financial or personal information.

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b.

Basis For Designation Of Confidential - Attorneys’ Eyes Only Information. K2M

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may also designate information as “Confidential – Attorneys’ Eyes Only” based upon

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a good faith belief that the information constitutes or contains K2M’s highly sensitive

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confidential or personal information, including information which, if placed in the

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hands of a person or entity other than K2M, may place K2M at a competitive

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disadvantage. As used in this Agreement, and except as otherwise set forth, “K2M

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Confidential Information” includes both information designated as “Confidential” and

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“Confidential – Attorneys’ Eyes Only.”

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4.

Permissible Use Of K2M Confidential Information. Any person having access to K2M

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Confidential Information shall use it solely and strictly for the purposes of the Litigation

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(including appeals) and not for any business or other purpose; shall not disclose it to anyone

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other than those persons designated herein, and solely and strictly as necessary for the

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purposes of prosecution or defense of the Litigation; and shall handle it in the manner set

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forth in this Agreement. The designation of material as K2M Confidential Information shall

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not itself affect the rights of K2M (or K2M’s authorized representative) to give or disclose

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K2M Confidential Information to any person for any reason, and such giving or disclosing of

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confidential information shall not be deemed a waiver of this Agreement.

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5.

Persons With Access To Information Designated as “Confidential”. Access to information

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designated as “Confidential” by K2M shall be limited to:

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a.

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Two Current officers, directors, and employees of Plaintiffs/Counterclaim
Defendants, who shall be disclosed to K2M at least five (5) calendar days in advance

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of any disclosure, to enable K2M to object;

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b.

Knapp;

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c.

Outside counsel for the parties to the Litigation whose firms have entered an

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appearance in the Litigation (including counsel’s employees, agents and clerical

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assistants);

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d.

Officers, directors, employees, agents, or attorneys of K2M;

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e.

The Court, court personnel, and court reporters;

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f.

Experts and consultants (including their employees and clerical assistants) who are

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employed, retained, or otherwise consulted by counsel of record for the parties to the

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Agreement for the purpose of analyzing data, conducting studies, or providing

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opinions for assistance in the Litigation.

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Plaintiffs/Counterclaim Defendants or Knapp, however, shall not, unless K2M

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consents in writing, include any person or business entity that is currently engaged in

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the business of developing, manufacturing, or distributing spinal implants or

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instrumentation, and shall be disclosed to K2M at least five (5) business days prior to

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any information designated as “Confidential” being disclosed, to enable K2M to

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object;

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g.

Such experts and consultants of

Deposition, hearing, or trial witnesses who previously had access to the information
through lawful means;

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h.

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recipient of a copy thereof; and

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Any person indicated on the face of the document or thing as an originator, author or

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Any other person only upon order of Court or stipulation of K2M.

Persons With Access To Information Designated as “Confidential – Attorneys’ Eyes Only”.

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Access to information designated as “Confidential – Attorneys’ Eyes Only” shall be limited

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to:

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a.

Outside counsel for the parties to the Litigation whose firms have entered an

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appearance in the Litigation (including counsel’s employees, agents and clerical

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assistants);

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b.

Knapp;

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c.

Officers, directors, employees, agents, or attorneys of K2M;

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d.

The Court, court personnel, and court reporters;

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e.

Experts and consultants (including their employees and clerical assistants) who are

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employed, retained, or otherwise consulted by counsel of record for the parties to the

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Agreement for the purpose of analyzing data, conducting studies, or providing

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opinions for assistance in the Litigation.

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Plaintiffs/Counterclaim Defendants or Knapp, however, shall not, unless K2M

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consents in writing, include any person or business entity that is currently engaged in

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the business of developing, manufacturing, or distributing spinal implants or

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instrumentation, and shall be disclosed to K2M at least five (5) business days prior to

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any information designated as “Confidential” being disclosed;

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f.

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Such experts and consultants of

Deposition, hearing, or trial witnesses who previously had access to the information
through lawful means;

g.

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Any person indicated on the face of the document or thing as an originator, author or
recipient of a copy thereof; and

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h.

Any other person only upon order of Court or stipulation of K2M.

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i.

Should Plaintiffs/Counterclaim Defendants or Knapp disclose K2M Confidential

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Information to any person(s) listed in Paragraph 5(a), 5(b), 5(e), 5(f), 5(g), 5(h), or

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5(i), or Paragraph 6(d), 6(e), 6(f), 6(g), or 6(h), the disclosing party

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(Plaintiffs/Counterclaim Defendants or Knapp) shall advise such person of the

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existence of this Confidentiality Agreement and the terms herein (but only to the

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extent the person is not an officer, director, employee, or attorney of K2M), and, prior

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to disclosing K2M Confidential Information to any person listed in Paragraph 5(a),

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5(f), or 5(i), or Paragraph 6(e) or 6(h), the disclosing party (Plaintiffs/Counterclaim

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Defendants or Knapp) shall obtain a signed declaration (in the form attached as

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Exhibit 1 hereto) from such person and provide the executed declaration, Exhibit 1, to

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counsel to K2M.

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7.

Filing And Use Of Confidential Information In Court. Unless provided herein, the label

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“Confidential Subject to Confidentiality Agreement of Plaintiffs/Counterclaim Defendants

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and K2M” must appear on the front page of all documents filed with the Court that contains

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K2M Confidential Information. All K2M Confidential Information that bears the label

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“Confidential” or “Confidential – Attorneys’ Eyes Only” shall be filed under seal in

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accordance with Federal Rule of Civil Procedure 5.2, and United States District Court for the

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Eastern District of California Local Rule 141. The party wishing to use the “Confidential” or

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“Confidential – Attorneys’ Eyes Only” information shall make the request to seal, and no

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party shall file or testify in Court concerning K2M “Confidential” or “Confidential –

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Attorneys’ Eyes Only” information unless such information is under seal.

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8.

Procedures To Designate Confidential Information. For the purposes of this Agreement,

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“documents” shall have the broadest possible meaning as defined in the Subpoena (and such

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definitions are incorporated by reference herein).

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a.

K2M may designate information which K2M believes, in good faith, to constitute

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K2M Confidential Information, as defined by this Agreement, as “Confidential” or

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“Confidential – Attorneys’ Eyes Only” in accordance with the provisions of this

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Agreement. In the case of documents, designation shall be made by placing the

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words “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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on at least the first page of the document prior to production or, in the case of native

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electronic documents, otherwise indicating the designation of the document. K2M

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may elect to produce original documents for inspection before such documents are

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marked “Confidential” or “Confidential - Attorneys’ Eyes Only”. Once specific

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documents have been designated for copying, any documents containing K2M

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Confidential Information will then be marked as “Confidential” or “Confidential –

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Attorneys’ Eyes Only” after copying but before delivery to K2M. There will be no

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waiver of confidentiality by the inspection of K2M Confidential Information before

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they are copied and marked “Confidential” or “Confidential – Attorneys’ Eyes Only”

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pursuant to this procedure.

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b.

Whenever a deposition taken of a K2M witness or an inspection of K2M’s premises

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is made which involves a disclosure of K2M Confidential Information:

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i.

Said deposition, inspection or portions thereof may be designated as

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“Confidential” or “Confidential – Attorney’s Eyes Only.” Such designations

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shall be made on the record whenever possible, but K2M may designate

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portions of depositions as “Confidential” or “Confidential – Attorney’s Eyes

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Only” after transcription by no later than ten (10) business days after receipt

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of the deposition transcript or notice of errata, whichever is later, informing

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the parties to the Litigation in writing of the portions of the transcript

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designated “Confidential” or “Confidential – Attorneys’ Eyes Only.” Such

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deposition transcripts shall be treated as Confidential – Attorneys’ Eyes Only

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until K2M’s review period has expired; and

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c.

K2M shall have the right to exclude from attendance at depositions or inspections,

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during time(s) that K2M Confidential Information is or may be disclosed, any person

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other than a deponent, outside counsel for the Parties (including their staff and

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associates), the court reporter, and the person(s) agreed upon pursuant to Paragraphs 5

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and 6 above.

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requirements of this provision have been met or waived; and

The K2M Confidential Information shall not be disclosed until

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d.

The original transcripts containing K2M Confidential Information and all copies

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thereof shall bear the legend “Confidential” or “Confidential – Attorneys’ Eyes Only”

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as appropriate.

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Retention of Confidential Information. All K2M Confidential Information which has been

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designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” by K2M, and any and

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all reproductions thereof shall be retained only in the custody of outside counsel for the

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parties in the Litigation whose firms have entered their appearance in the Litigation, except

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that experts and consultants authorized to view such information under the terms of this

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Agreement may retain custody of such copies as are necessary for their participation in the

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Litigation.
10.

Disclosure Of Confidential Information In Other Actions. In the event that a person (the

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“recipient”) subject to this Agreement receives a subpoena related to another action that

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seeks the production of K2M Confidential Information, the recipient shall, within not more

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than three (3) business days of receipt of such subpoena, provide notice in writing to K2M,

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c/o Shannon Hampton Sutherland, Duane Morris LLP, 30 S. 17th St., Philadelphia, PA

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19103, [e-mail], and c/o General Counsel, Legal Department, K2M,

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Inc., 751 Miller Drive, SE, Leesburg, VA 20175. To the extent permitted by law, the

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recipient shall not produce the K2M Confidential Information at issue for at least ten (10)

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business days from the date the recipient receives the subpoena and shall cooperate fully with

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K2M in contesting the subpoena.

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11.

Return Of K2M Confidential Information.

Immediately after entry of final judgment

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including appeals, or of dismissal in connection with the Litigation, all K2M Confidential

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Information produced in connection with the Litigation or the Subpoenas, including any

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copies thereof and summaries or descriptions thereof contained in other documents, shall be

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returned to K2M.

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including by rendering electronically stored information inaccessible, and the Party in

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possession of the information shall provide to K2M’s undersigned counsel written

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confirmation of the destruction of the K2M Confidential Information. This provision does

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Alternatively, the receiving parties may destroy such information,

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not prohibit outside counsel for the Parties from retaining deposition transcripts in order to

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maintain complete client files, provided, however, that outside counsel shall retain those

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copies as Attorneys’ Eyes Only, and shall use them solely in connection with the Litigation.

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12.

Inadvertent Production. The inadvertent production of any document or other information

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during discovery in connection with the Litigation or the Subpoenas shall be without

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prejudice to any claim that such material is subject to the attorney client privilege, joint

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defense privilege, common interest privilege, or any other applicable privilege, or is

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protected from discovery as work product within the meaning of Federal Rule of Civil

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Procedure 26(b)(3). No party to this Agreement shall be held to have waived any rights by

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such inadvertent production.

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Confidential Information without the “Confidential” or “Confidential – Attorneys’ Eyes

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Only” designation shall not constitute a waiver of K2M’s right to designate the information

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produced as K2M Confidential Information.

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Plaintiffs/Counterclaim Defendants and Knapp as soon as the omission is discovered.

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Plaintiffs/Counterclaim Defendants and Knapp shall then mark as “Confidential” or

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“Confidential – Attorneys’ Eyes Only” all documents or things indicated by K2M as having

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been produced without such designation, and treat those documents in accordance with this

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Agreement. Further, if multiple versions of the same document are produced with different

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confidentiality designations, the more restrictive designation shall apply to all copies

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produced even if not so designated. In reviewing the production of documents produced by

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K2M, should counsel to Plaintiffs/Counterclaim Defendants or Knapp believe that a

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particular document is or may be privileged (“Suspect Document”), such attorney (the

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“Reporting Party”) will cease further review of the Suspect Document and shall promptly

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notify K2M’s counsel and opposing counsel in writing and identify the Suspect Document by

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Bates Number (or, if the document does not bear a Bates Number, by other identifying

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information).

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Plaintiffs/Counterclaim Defendants nor Knapp, nor their counsel, nor any person (e.g., an

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expert or consultant) to which such Suspect Document may have been provided shall further

090725.02250/22325881v.1

Inadvertent production of information considered K2M

K2M shall give prompt written notice to

Once a document is identified as a Suspect Document, then neither

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access such Suspect Document or use the information contained therein until such time as

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counsel for K2M notifies counsel to Plaintiffs/Counterclaim Defendants and Knapp, in

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writing, regarding whether K2M claims a privilege in the Suspect Document as delineated

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below. Within ten (10) business days of receipt of the written notification, counsel for K2M

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shall in writing notify counsel for Plaintiffs/Counterclaim Defendants and Knapp whether

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K2M claims a privilege in such Suspect Document. If privilege is claimed in the Suspect

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Document, K2M’s counsel shall thereafter add the newly identified document to K2M’s

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privilege log reasonably promptly.

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Document, then such Suspect Document shall thereafter be treated as privileged and

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eliminated from the computer systems of Plaintiffs/Counterclaim Defendants, Knapp, and

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their counsel (and any other place where such document may be found). Should elimination

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be technically infeasible, then Plaintiffs/Counterclaim Defendants, Knapp, and their counsel,

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and any other person who had access to the Suspect Document, shall in good faith no longer

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access such document and shall mark it as privileged in their own systems. Nothing herein

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shall prevent Plaintiffs/Counterclaim Defendants or Knapp from challenging through

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appropriate motion to the Court K2M’s designation of the Suspect Document (or any other

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document) as privileged. The parties agree and stipulate, however, that the fact of such

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document having been produced pursuant to the terms of this Agreement will not in any way

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constitute a waiver of any claimed privilege (in the Litigation or any other matter) nor shall

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the facts of such production be argued to any court.

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Defendants or Knapp choose to challenge through an appropriate motion to the Court K2M’s

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designation of a Suspect Document as privileged, the Suspect Document shall continue for

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the duration of such motion practice to be treated as privileged and not accessed by

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Plaintiffs/Counterclaim Defendants or Knapp, or their counsel, for any purpose. Rather, such

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motion shall be limited to the material contained in K2M’s privilege log.

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Plaintiffs/Counterclaim Defendants or Knapp believe it necessary for the document to

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reviewed by the Court in camera, then Plaintiffs/Counterclaim Defendants or Knapp shall so

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petition the Court for such in camera review. Should the Court determine that a Suspect

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Should K2M claim a privilege in such Suspect

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Should Plaintiffs/Counterclaim

Should

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Document is privileged, then it shall continue to be treated as privileged as set out herein or

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as more specifically directed by the Court. Should the Court determine that the Suspect

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Document is not privileged, then it shall cease to be treated as privileged as directed by the

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Court.

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13.

Challenges To Designations Of Confidentiality.
a.

No party to this Agreement concedes that any material designated by any other

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person as “Confidential” or “Confidential -Attorneys’ Eyes Only” does in fact contain

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or reflect trade secrets, proprietary or confidential information, or has been properly

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designated as Confidential. Any party to this Agreement may at any time move for

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relief from the provisions of this Agreement with respect to specific material, as set

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forth below.

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b.

If Plaintiffs/Counterclaim Defendants or Knapp believes that any information labeled

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as K2M Confidential Information is not properly designated “Confidential” or

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“Confidential – Attorneys’ Eyes Only”, Plaintiffs/Counterclaim Defendants or Knapp

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may, at any time, notify K2M and request a release of confidentiality or modification

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of the confidentiality designation. Plaintiffs/Counterclaim Defendants, Knapp, and

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K2M shall attempt in good faith to resolve any dispute that may arise and should only

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seek appropriate application with the Court in order to protect the rights created by

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this Agreement after all efforts to privately resolve their dispute have failed. If K2M

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does not grant the requested release or modification of confidentiality within ten (10)

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business days, Plaintiffs/Counterclaim Defendants or Knapp may thereafter file a

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motion exclusively with the Court requesting a determination by the Court as to

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whether the information at issue shall be treated as “Confidential” or “Confidential –

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Attorney’ Eyes Only” under the terms hereof. If Plaintiffs/Counterclaim Defendants

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or Knapp files a motion with the Court requesting such a determination, the

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confidential status of the information shall be maintained pending the Court’s ruling

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on the motion. The burden of proving confidentiality of designated information

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remains with the person or entity so designating the information.

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There is no

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obligation to challenge the propriety of any designation of information as

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“Confidential” or “Confidential – Attorneys’ Eyes Only” and the failure to do so

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promptly shall not preclude any subsequent objection to such designation.

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14.

Reservation Of Rights. Nothing in this Agreement shall constitute a waiver of any right by

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K2M to object in whole or in part to any requests for information, documents, inspection, or

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deposition, and all such objections are preserved. Nothing in this Agreement shall be

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construed as an admission or acquiescence by K2M that any request for information,

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documents, inspection, or deposition is permissible, the proper subject of discovery or

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inquiry, relevant, not burdensome, or admissible.

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15.

Jurisdiction, Venue, and Choice of Law. Plaintiffs/Counterclaim Defendants, Knapp, and

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K2M and any other person or entity subject to the terms of this Agreement agree that the

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United States District Court for the Eastern District of California shall have personal

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jurisdiction over it/them with respect to this Agreement, exclusive jurisdiction over the

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subject matter of this Agreement, and exclusive venue with respect to this Agreement, for the

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purposes of enforcing this Agreement, notwithstanding any subsequent disposition of the

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Litigation. Plaintiffs/Counterclaim Defendants, Knapp, and K2M and any other person or

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entity subject to the terms of this Agreement further agree that California law shall govern

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any action to enforce or relating to this Agreement.

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16.

Production or disclosure of information designated as “Confidential” or “Confidential –

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Attorneys’ Eyes Only” according to the provisions of this Agreement shall not prejudice the

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right of any person making that production or disclosure to maintain the trade secret status or

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confidentiality of that information in other contexts.

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17.

This Confidentiality Agreement may be signed in counterparts.

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COUNSEL FOR PLAINTIFFS/
COUNTER DEFENDANTS
SYNTHES, INC. &
DEPUY SYNTHES SALES, INC.:

COUNSEL FOR
DEFENDANT/COUNTERCLAIM
PLAINTIFF GREGORY KNAPP:

/s/ Michael Lester Ludwig
Blank Rome LLP
2029 Century Park East
6th Floor
Los Angeles, CA 90067
(t) 424.239.3400
(f) 424.239.3434
[e-mail]

/s/ Malcom S. Segal
Malcolm S. Segal
Segal & Associates, PC
400 Capitol Mall, Suite 2550
Sacramento, CA 95814
(t) 916.441.0886
(f) 916.475.1231
Email: [e-mail]

/s/ Anthony B. Haller
Anthony B. Haller, PHV
Scott F. Cooper, PHV
Andrew B. Cohen, PHV
Blank Rome LLP
One Logan Square
130 North 18th Street
Philadelphia, PA 19103-6998
(t) 215.569.5690
(f): 215.832-5690/5463/5487
[e-mail]
[e-mail]
[e-mail]

/s/ John P. McShea III
John P. McShea, III , PHV
McShea Law Firm, P.C.
Centre Square, West Tower
1500 Market Street
40th Floor
Philadelphia, PA 19102
(t) 215.599.0800
(f) 215.599.0888
[e-mail]

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COUNSEL FOR K2M, INC.:

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/s/ Allegra Jones
ALLEGRA JONES
Duane Morris LLP
Spear Tower
One Market Plaza, Suite 2200
San Francisco, CA 94105-1127
(t) 415.957.3235
(f) 415.704.3451
[e-mail]

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/s/ Shannon Hampton Sutherland
SHANNON HAMPTON SUTHERLAND
Of Counsel
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103
(t) 215.979.1104
(f) 215.689.4956
[e-mail]

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090725.02250/22325881v.1

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Exhibit 1 to Confidentiality Agreement

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DECLARATION

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I, _________________________________, hereby understand and agree that information

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and/or documents designated as Confidential Information shall be provided to me subject to the

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terms and conditions set forth in the Confidentiality Agreement for the Discovery Of Confidential

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Information from K2M, Inc. and Its Employees (the “Agreement”), which was agreed to by Synthes,

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Inc., DePuy Synthes Sales, Inc., Gregory Knapp, and K2M, Inc. in connection with the matter

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entitled Synthes, Inc. et al. v. Gregory Knapp, United States District Court for the Eastern District of

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California, No. 2:13-cv-02261 (the “Litigation”) and a subpoena issued out of the same Court to

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K2M, Inc..

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I hereby acknowledge that I have been given a copy of and have read the Agreement. I agree

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that I shall not disclose the information and/or documents to others and that the information and/or

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documents shall be used only for the purpose of the Litigation.

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conclusion of the Litigation, I will return or destroy all K2M Confidential Information, including all

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copies thereof and all summaries or descriptions thereof contained in other documents.

I agree that, following the

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I further agree to be bound by the terms of the Agreement and to subject myself to the

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exclusive jurisdiction of and venue of the United States District Court for the Eastern District of

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California and California law for the enforcement of the Agreement and understand that, in the event

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that I fail to abide by the terms of the Agreement, I may be subject to sanctions by the Court.

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Date: ________________________

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________________________________
Name

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ORDER
Pursuant to the parties’ stipulation, IT IS SO ORDERED.
Dated: December 16, 2014

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Ddad1\orders.civil
synthes2261.stip.prot.ord.doc

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