Shire LLC et al v. Sandoz Inc.
Filing
62
PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 9/14/2011. (kmtcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 1:11-cv-01110-PAB-KMT
SHIRE LLC,
SUPERNUS PHARMACEUTICALS, INC.,
SHIRE DEVELOPMENT INC.,
SHIRE INTERNATIONAL LICENSING
B.V.,
AMY F.T. ARNSTEN, PH.D.,
PASKO RAKIC, M.D., and
ROBERT D. HUNT, M.D.,
Plaintiffs,
v.
SANDOZ INC.,
Defendant.
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STIPULATED PROTECTIVE ORDER
WHEREAS, the parties have stipulated that certain discovery material be treated as
confidential;
WHEREAS discovery in this action may involve the disclosure of certain documents,
things and information in the possession, custody or control of plaintiffs Shire LLC, Shire
Development, Inc., Shire International Licensing B.V., Supernus Pharmaceuticals, Inc., Amy
F.T. Arnsten, Ph.D. (“Arnsten”), Pasko Rakic, M.D. (“Rakic”), and Robert D. Hunt, M.D.
(“Hunt”), (collectively “Plaintiffs”) and defendant Sandoz Inc. (“Defendant”) or non-parties,
that constitute or contain trade secrets or other confidential research, development or commercial
information within the meaning of Rule 26(c)(7) of the Federal Rules of Civil Procedure;
2088092.1
WHEREAS such confidential information must be protected in order to preserve the
legitimate business interests of the parties or non-parties; and
WHEREAS the parties, through counsel, stipulate that good cause exists for the entry of
this Protective Order pursuant to Rule 26(c) for the purpose of advancing the progress of this
case and to prevent unnecessary dissemination or disclosure of such confidential information.
Accordingly, it is this__day of September, 2011, by the United States District Court for the
District of Colorado, ORDERED:
Definitions
1.
The term “Party” and “Parties” shall mean any party to this litigation, including all of its
officers, directors, employees.
2.
The term “Outside Counsel” shall mean attorneys of the law firms Duane Morris LLP,
Wheeler Trigg O’Donnell LLP, Frommer, Lawrence & Haug LLP, and Davis Graham &
Stubbs LLP, who are not employees of a Party, but who are retained to represent or advise
a Party in this litigation; and any such law firms retained to represent third parties.
3.
The term “In-House Counsel” refers to attorneys who are employees of a Party.
4.
The term “Producing Party” shall mean any Party to this action or any third party,
including its directors, officers, or employees who produces any discovery material.
5.
The term “Receiving Party” shall mean any Party to this action, including its counsel,
retained experts, directors, officers, employees, or agents who receives any discovery
material in this action.
6.
The term “Protected Information” shall mean any document or other tangible thing or any
electronically stored information or oral testimony that contains or reveals what a Party or
non-Party considers to be its trade secret, business, confidential, or proprietary
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information, including, but not limited to, all documents produced in the course of
discovery, all answers to interrogatories, all answers to requests for admission, all
responses to requests for production of documents, and all deposition and trial (or other
hearing) testimony and exhibits that are designated pursuant to this Order. In designating
information as “Protected Information,” a Party or non-Party (“Designating Party”) shall
designate only its trade secrets, information that it has maintained in confidence, or
information in which it has a proprietary interest. Each Party shall act in good faith in
designating information as “Protected Information.”
7.
This Protective Order establishes two categories of Protected Information. Information in
the higher category is referred to as “Highly Confidential Information” and is designated
as “Highly Confidential Information – Attorneys’ Eyes Only.” Information in the lower
category is referred to and designated as “Confidential Information.”
8.
The “Highly Confidential Information – Attorneys’ Eyes Only” designation may only be
used by a designating Party for commercially-sensitive information (e.g., about business
plans and objectives, marketing, sales, revenues, profits, and forecasts), products in
development, and future plans, strategies, and programs, and may not be used for technical
information relating to, referring to, or concerning Shire LLC’s New Drug Application
(“NDA”) 022037 or the products that are the subject of such NDA. The Highly
Confidential Information – Attorneys’ Eyes Only Information designation includes
communications concerning Highly Confidential Information and any information or data
derived from Highly Confidential Information. This designation shall be made in good
faith. Protected Information that is designated as “Highly Confidential – Attorneys’ Eyes
Only” may only be disclosed to the individuals identified in paragraphs 10(a)-10(g).
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Defendant’s ANDA Number 202568 will be designated “Highly Confidential - Attorneys’
Eyes Only” and may be disclosed to individuals identified in paragraphs 10(a)-10(i),
subject to the restrictions set forth in paragraph 11. All other Highly Confidential
Information may also be disclosed to the individual identified in paragraph 10(h) only
when and to the extent that such Highly Confidential Information is cited or disclosed in
(i) documents filed with the Court (not including discovery disputes); (ii) expert reports
exchanged pursuant to Federal Rule of Civil Procedure 26(a)(2); or (iii) responses to
discovery requests, such as requests for admission or contention interrogatories.
9.
The “Confidential Information” designation shall mean and include material of a
Designating Party other than that designated Highly Confidential Information – Attorneys’
Eyes Only that is not publicly known and which the Designating Party would not normally
reveal to third parties or, if disclosed, would require such third parties to maintain in
confidence. Material that is designated Confidential Information may be disclosed to any
of the individuals identified in Paragraph 10, subject to the other restrictions identified
herein.
10.
The term “Qualified Person” shall mean:
a. the Court and its official personnel;
b. Plaintiffs’ Outside Counsel of record in Case No. 1:11-cv-01110-PAB-KMT and
their law firms’ active members, associate attorneys, paralegals, and office staff
(“Plaintiffs’ Outside Counsel”);
c. Outside Counsel of record for the Defendant in Case No. 1:11-cv-01110-PABKMT and its law firms’ active members, associate attorneys, paralegals, and
(“Defendant’s Outside Counsel”);
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d. court reporters, stenographers, videographers, interpreters, translators, document
coding or computerization services, third-party photocopy, data or imaging
services contractors, third-party contractors producing graphic or visual aids and
their respective assistants involved solely in providing litigation support services
to Plaintiffs’ or Defendant’s Outside Counsel;
e. any independent expert or consultant who is retained by Plaintiffs’ or Defendant’s
Outside Counsel and their staffs solely for the purpose of assisting in any way in
this action, and any testing laboratory retained by Outside Counsel or any expert
or consultant. For the purposes of this Protective Order, the terms “independent
expert” and “consultant” shall not include any officer, director, or employee of
any Party;
f. a witness testifying under oath in any deposition or other proceeding of the abovecaptioned litigation who: (1) is or was an officer, director, or employee of the
Designating Party; (2) is the author, recipient, or intended recipient of the Highly
Confidential Information or Confidential Information; (3) is reasonably believed
to have had access to or knowledge of the Highly Confidential Information or
Confidential Information; (4) has been designated by the Designating Party under
Fed. R. Civ. P. 30(b)(6) on a topic to which the Highly Confidential Information
or Confidential Information pertains; or (5) has the consent of the Designating
Party to such disclosure;
g. jury consultants involved solely in providing litigation support services to Outside
Counsel;
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h. two (2) In-House Counsel of a Party who have responsibility for managing,
evaluating or consulting with respect to this litigation, provided such counsel have
signed a non-disclosure agreement in the form attached hereto as Exhibit A. The
In-House Counsel of a party may be substituted by another In-House Counsel of
that same party on a one-for-one basis provided that the In-House Counsel to be
substituted meet all the conditions set forth in this paragraph 10(h), and further
provided that no more than two In-House Counsel of a party may at any time be
Qualified Persons as defined herein. With respect to the individuals as plaintiffs,
namely Arnsten, Rakic and Hunt, who have no In-House Counsel, Arnsten is
designated as a Qualified Person pursuant to this paragraph and is subject to all of
the restrictions set forth herein on other Qualified Persons identified pursuant to
this paragraph; and/or
i. any other person who is designated as a “Qualified Person” by order of the Court
or by written agreement of the Parties.
11.
The disclosure of Confidential and Highly Confidential information is further subject to
the following restrictions:
a. The individuals specified in paragraphs 10(b), 10(c), 10(e), 10(f) and 10(h) who
have received Confidential or Highly Confidential Information may not
participate in any capacity in the prosecution of U.S. or foreign patent
applications claiming or involving guanfacine or controlled-release formulations
of guanfacine or processes for making guanfacine or controlled-release
formulations of guanfacine, including the preparation of any materials which are
directly used in the drafting or prosecution of applications claiming or involving
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controlled-release formulations of guanfacine or processes for making guanfacine
or controlled-release formulations of guanfacine enduring the pendency of this
action, without prior approval from the Court to do so. The restrictions of this
paragraph shall apply to individuals and not the organizations by which they are
employed or affiliated, provided, however, that an appropriate ethical wall shall
be established if others at the organization participate in or prepare materials for
such prosecution.
Use of Protected Information
12.
Protected Information shall be used solely for the purpose of this action. Specifically,
Protected Information shall not be used or disclosed by any Qualified Person for any
purposes whatsoever other than preparing for and conducting the litigation in which the
information or documents were disclosed (including appeals). For sake of clarity, no
Party or person receiving another Party’s Confidential or Highly Confidential Information
shall use such other Party’s Confidential or Highly Confidential Information in any way in
any proceedings involving the Food and Drug Administration (including citizen petitions
and APA litigation) that concern any application for regulatory approval filed by any Party
concerning controlled-release guanfacine or in any proceeding before the USPTO.
13.
Nothing in this Protective Order shall prevent any person, including a Qualified Person,
from making use of any information that is designated as Protected Information if such
information:
a. was lawfully in his or her possession prior to receipt under the provisions of this
Protective Order;
b. was or becomes available to the public through no fault of a Qualified Person;
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c. was or is obtained from a source not under an obligation of secrecy to the
Designating Party;
d. is exempted from the operation of this Protective Order by written consent of the
Designating Party; or
e. is exempted by order of this Court.
Disclosure of Protected Information
14.
Protected Information shall not be made available to anyone other than a Qualified Person
or the Designating Party, except as otherwise provided in this Protective Order.
15.
A document that contains or reveals Protected Information may be shown to any person
indicated in such document to be its originator or author or the recipient of a copy.
16.
Nothing in this Protective Order shall prevent disclosure of Protected Information if the
Designating Party consents to such disclosure or if the Court, after notice to all parties,
orders such disclosure.
17.
Regarding disclosure of Protected Information to Qualified Persons:
a. Counsel desiring to disclose Protected Information to an independent expert, a
consultant or testing laboratory according to subparagraph 10(e) shall first obtain
a signed declaration in the form shown in attached Exhibit A from that
person/entity. At least five (5) business days in advance of the proposed
disclosure of any Protected Information to that person, counsel shall serve on all
parties that person’s signed declaration and curriculum vitae or resume. A
Designating Party may object to such disclosure for cause by serving a written
objection upon each other Party within five (5) business days after receiving the
signed declaration. Failure to timely object shall operate as a waiver of the
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objection. Opposing counsel shall make a good faith effort to reach an agreement
regarding the proposed disclosure to the expert, consultant, or testing laboratory.
If an agreement cannot be reached, the objecting Party shall make an appropriate
motion within five (5) business days after the objection is made. The burden shall
be on the objecting Party to show the Court why the disclosure should not be
made. If an objection is made, no Highly Confidential or Confidential
Information shall be made available to the particular expert, consultant, or testing
laboratory until after the Court rules that disclosure can be made, so long as the
objection is followed by a timely motion.
b. Counsel desiring to disclose Protected Information to a person according to
paragraphs 10(g), 10(h), and/or 10(i) shall first obtain a signed declaration in the
form shown in attached Exhibit A from that person.
18.
If Highly Confidential or Confidential Information is disclosed to anyone other than in a
manner authorized by this Protective Order, the Party responsible for such disclosure must
immediately bring all pertinent facts relating to such disclosure to the attention of the
Designating Party and make every reasonable effort to retrieve such Highly Confidential
or Confidential Information and to prevent further disclosure.
Identification and Marking of Protected Information
19.
Any document or other tangible thing that contains or reveals Protected Information shall
be labeled with the legend “CONFIDENTIAL” or the legend “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such designations shall be made in
good faith. For a document, such marking shall appear on the initial page and each page
of the document that contains Protected Information. In the case of computer medium, the
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marking shall be placed on the medium and its label and/or cover. In the case of a product
sample, the marking shall be placed on the container for the sample. To the extent
practical, the “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
“CONFIDENTIAL” designation shall be placed near the production number. Any
Protected Information not reduced to documentary or physical form or which cannot be
conveniently labeled shall be so designated by the Designating Party by serving written
notice on all parties. Any document or other tangible thing so labeled and the information
it contains or reveals shall be treated in accordance with the provisions of this Protective
Order.
20.
When a Party initially produces documents for inspection, no marking need be made to
such documents in advance of the inspection. There will be no waiver of confidentiality
by the inspection of Protected Information before it is copied and marked confidential
pursuant to the procedure of paragraph 14. For purposes of the inspection, all documents
shall be treated as Highly Confidential Information – Attorneys’ Eyes Only. After the
inspecting party selects documents for production, the designating party shall
appropriately mark the copies of the selected documents before they are provided to the
receiving party.
21.
Testimony or information disclosed at a deposition may be designated as Protected
Information either (a) on the record at the deposition or (b) by serving a written
notification within thirty (30) calendar days of receipt of the final transcript by counsel for
the Designating Party. A copy of such written notification shall be attached to the face of
the transcript and each copy of the transcript in the possession, custody, or control of any
Qualified Person. All information disclosed during a deposition shall be treated as Highly
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Confidential Information – Attorneys’ Eyes Only until at least thirty (30) calendar days
after a final transcript of the deposition is received by counsel for each of the parties. A
deponent may review the transcript of his or her deposition at any time.
22.
Only Qualified Persons and the deponent shall be allowed to attend any portion of a
deposition in which Protected Information is used or elicited from the deponent.
23.
Deposition transcripts containing Protected Information shall be prominently marked on
the front page with a statement that provides “THIS DEPOSITION TRANSCRIPT
CONTAINS PROTECTED INFORMATION THAT IS SUBJECT TO PROTECTIVE
ORDER.”
24.
In the case of responses to interrogatories or other discovery requests, information
contained therein may be designated as Highly Confidential – Attorneys’ Eyes Only or
Confidential Information by prominently marking such paper with the legend “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL” respectively.
25.
Any memoranda, pleadings, affidavits or other papers served or filed with the Court that
incorporate materials designated as Highly Confidential – Attorneys’ Eyes Only or
Confidential Information shall be prominently marked on the cover (near the caption to
the extent practicable) with the legend “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” or “CONFIDENTIAL” respectively, and maintained confidential pursuant
to the procedures of this Court.
Drafts of Expert Reports
26.
The parties agree that no Party or independent expert witness or consultant or testing
laboratory, whether designated as a testifying witness or not, is required to maintain or
produce drafts of expert reports or communications with outside counsel relating to the
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captioned matter, or notes made or taken during preparation of laboratory testing or expert
reports per Fed. R. Civ. P. 26(b)(4)(B). Communications between an independent expert
witness, consultant, or testing laboratory and a Party’s attorneys shall not be discoverable,
except that facts or data contained in such communications and reviewed by or relied upon
by such expert witness, consultant, or testing laboratory will become discoverable
pursuant to Fed. R. Civ. P. 26(a)(2)(B) if and when such individual or entity is designated
as a testifying witness.
27.
Facts and data generated or reviewed by an expert, consultant, or testing laboratory and
relied upon by such individual or entity will become discoverable if and when such
individual or entity is designated as a testifying witness. The parties and testifying experts,
consultants or testing laboratory shall fully comply with all other disclosure requirements
of Federal Rule of Civil Procedure 26(a)(2) subject to the exclusions set forth in this
Protective Order.
Inadvertent Failure to Designate
28.
The inadvertent failure by a Party to designate specific documents or materials as
containing Protected Information shall not be deemed a waiver in whole or in part of a
claim of confidentiality as to such documents or materials. Upon notice to each Party of
such failure to designate, each Party shall cooperate to a reasonable extent to restore the
confidentiality of the inadvertently disclosed information.
29.
Upon notice to the receiving Party of such failure to designate, the receiving Party shall
(1) take all reasonable steps to retrieve the relevant material, including any summaries
and/or notes related to the Highly Confidential or Confidential Information, to the extent it
has been disclosed to persons who would not be authorized to view it under Paragraph 10;
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and (2) return to the producing Party any unmarked or improperly marked copies of the
relevant material that are recovered or certify in writing that any such copies have been
destroyed within ten (10) calendar days of receipt of properly designated substitute copies.
The receiving Party reserves the right to challenge the designation of materials as Highly
Confidential or Confidential Information.
Challenges to Protected Information Designation
30.
If any Qualified Person disputes or challenges the designation of any information as
Protected Information, such information shall nevertheless be treated as Protected
Information in accordance with the provisions of this Protective Order until such
designation is removed by order of the Court or by written consent of the Designating
Party.
31.
A Party shall not be obligated to challenge the propriety of a Protected Information
designation at the time made, and a failure to do so shall not preclude a subsequent
challenge thereto. In the event that a Party disagrees at any time with a Protected
Information designation made by another Party, a good faith attempt to resolve the dispute
on an informal basis shall be made by the parties. In the event the dispute cannot be
resolved informally, the following procedure shall be used:
a. The Party seeking the removal of the designation of Protected Information shall
give Outside Counsel for the designating Party notice thereof, in writing,
specifying the documents, things, or information for which such removal is
sought and the reasons for the request. The Designating Party shall have fourteen
(14) calendar days after receiving that notification within which to object to the
removal of protection afforded by this Order. Any such objection shall be made
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in writing. Failure to object within the requisite time limit is deemed a waiver of
any claim to protection for that specific document, thing, or information under
this Protective Order.
b. If the Designating Party objects in a timely fashion, then the Party seeking the
removal of protection for the designated Protected Information shall file and serve
a motion with the Court; the designated material shall continue to be treated as
Protected Information until the issue is resolved by Order of this Court or by
agreement of the parties in dispute over the designation of Protected Information.
c. On any motion arising out of the designation of any material as Protected
Information under this Protective Order, the burden of justifying the designation
shall lie with the Designating Party.
Inadvertent Production of Privileged Information
32.
Inadvertent production of documents or information to the receiving Party, including the
use of such materials in depositions, pleadings or any written discovery; or disclosing such
materials to the Court, subject to the attorney-client privilege, work-product immunity, or
any other applicable privilege or immunity shall not constitute a waiver of such
privilege(s) or immunities. Inadvertent production of documents or information shall be
handled as follows, without prejudice to the right of any Party to apply to the Court for
further protection or disclosure relating to discovery:
a. Immediately upon receiving notice from the producing Party that documents or
materials subject to the attorney-client privilege or work-product immunity have
been inadvertently produced, the receiving Party shall not review, copy, or
otherwise disseminate the documents or materials, or disclose their substance. In
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addition, the receiving Party shall return the documents or materials, all copies, as
well as the sections of any analyses, memoranda or notes referencing such
information, or represent in writing that all such documents and materials have
been destroyed within five (5) business days from receiving notice. If portions of
a produced document contain inadvertently produced material(s) subject to the
attorney-client privilege or work-product immunity, the producing Party shall
provide a replacement copy of the document with privileged material(s) redacted.
Within five (5) business days from receiving the replacement copy of the
document the receiving Party shall return the unredacted document containing the
inadvertently produced material(s) or represent in writing that all such documents
and materials have been destroyed. For sake of clarity, the receiving Party may
retain copies of pleadings and correspondence or other communications with the
producing Party or the Court that reference the inadvertently produced documents
or materials. Such notification by the producing Party shall constitute reasonable
precautions to prevent disclosure and reasonably prompt measures to rectify the
inadvertent production within the meaning of Fed. R. Evid. 502(b).
b. If the receiving Party believes it has a good-faith basis for challenging the
privilege claim, Outside Counsel for the receiving Party shall provide to Outside
Counsel for the producing Party, within seven (7) calendar days after receipt of
the producing Party’s request for return, a written explanation of the good-faith
basis for its belief that the inadvertently produced documents or information are
not privileged.
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c. Outside Counsel for the producing Party shall respond in writing to the receiving
Party’s Outside Counsel’s timely challenge to the privilege or immunity claim
within seven (7) calendar days from receipt of the challenge.
d. In the event the parties cannot agree as to the privilege or immunity status of the
inadvertently produced documents or materials, the receiving Party has seven (7)
calendar days from receipt of the producing Party’s written response to the
privilege challenge to seek relief from the Court compelling production of the
inadvertently produced documents or information. The receiving Party shall not
use the substantive content of the inadvertently produced documents or
information to challenge the privilege or immunity status of such material. Nor
may the receiving Party challenge the privilege or immunity status on the fact or
circumstance that the material has been inadvertently produced or disclosed. In
the event that the challenge to a claim of privilege comes before the Court, the
producing Party shall have the burden of proving that the produced documents or
information are privileged.
33.
Once a document or information has been used during a deposition, used as an exhibit to a
pleading filed with the Court, identified for use at trial or otherwise disclosed to the Court,
the producing Party has twenty-one (21) calendar days from the date of use or disclosure
to provide notice of the inadvertent production. Notwithstanding any other provision of
this Protective Order, failure to provide notice within this 21-day period shall constitute a
waiver of any and all applicable privileges with respect to the inadvertently produced
documents or information only. Handling of the inadvertently produced documents or
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information following notice pursuant to this paragraph will be governed by the provisions
set forth in paragraphs 32(a)-32(d).
Filing of Protected Information
34.
The Clerk of the Court is directed to maintain under seal any pleading, motion, brief,
memorandum, exhibit, affidavit, declaration, transcript, response to a discovery request, or
other paper filed with the Court that has been designated, in whole or in part, as containing
or revealing Protected Information.
35.
In the event that a Party wishes to use any Protected Information in any pleading, motion,
brief, memorandum, exhibit, affidavit, declaration, transcript, response to a discovery
request, or other paper filed with the Court, such paper shall be filed with the Court in a
manner consistent with Local Rule 7.2.
Advice to Clients
36.
Nothing in this Protective Order shall bar or otherwise restrict an attorney herein from
rendering advice to his or her client with respect to this action and, in the course thereof,
referring to or relying upon his or her examination of Protected Information. In rendering
such advice and in otherwise communicating with his or her client, the attorney shall not
disclose any Protected Information if such disclosure would be contrary to the provisions
of this Protective Order.
Non-Party Subpoena of Protected Information
37.
If a Receiving Party receives a subpoena or other compulsory process from a non-Party to
this Order seeking production or other disclosure of a Producing Party’s Protected
Information, that Receiving Party shall give written notice to Outside Counsel of record
for the Producing Party within ten (10) business days after receipt of the subpoena or other
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compulsory process identifying the specific Protected Information sought and enclosing a
copy of the subpoena or other compulsory process. If the Producing Party timely seeks a
protective order, the Receiving Party to whom the subpoena or other compulsory process
was issued or served shall not produce the Protected Information requested prior to
receiving a Court order or consent of the Producing Party. In the event that Protected
Information is produced to a non-Party, such material shall be treated as Protected
Information pursuant to this Order.
38.
If any Party issues a subpoena to a non-Party to this Order that a Producing Party
reasonably believes seeks production of information containing the Producing Party’s
Protected Information, the Producing Party shall be entitled to review the requested
information before it is disclosed to the Requesting Party and designate any portion of this
information as Protected Information under this Order within fourteen (14) calendar days
of receipt.
Miscellaneous
39.
No Party shall be responsible to another Party for any use made of information that is
produced and not designated as Protected Information.
40.
Nothing in this Protective Order shall prejudice in any way the rights of any Party to
object to the production of documents or information it considers not subject to discovery
(e.g., lack of relevance, privilege or any other ground other than confidentiality), or
operate as an admission by any Party that the restrictions and procedures set forth herein
constitute adequate protection for any particular information deemed by any Party to be
Highly Confidential or Confidential Information.
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41.
Nothing in this Protective Order shall prejudice the right of any Party to seek at any time a
further order modifying this Protective Order.
42.
In the event that a new Party is added, substituted, or brought in, this Protective Order will
be binding on and inure to the benefit of the new Party, subject to the right of the new
Party to seek relief from or modification of this Protective Order.
43.
Nothing in this Protective Order shall prejudice the right of any Party to bring before the
Court at any time the question of whether any greater or lesser restrictions should be
placed upon the disclosure of any Protected Information. However, no information may
be withheld from discovery on the ground that the material to be disclosed requires
protection greater than that afforded by this Order unless the Party claiming a need for
greater protection moves for an order providing such special protection pursuant to Fed. R.
Civ. P. 26(c).
44.
Within sixty (60) calendar days after the termination of this litigation (including any
appeals), each document and each other tangible thing that contains or reveals Protected
Information and any copies, abstracts, summaries, notes, or other records regarding the
contents of any Protected Information shall be either (a) returned to the attorney of record
for the Designating Party or (b) destroyed with a written representation of such destruction
being made to the attorney of record for the Designating Party within seven (7) calendar
days of such destruction. The return or destruction of Protected Information includes such
Protected Information in the possession of experts, consultants and testing laboratories.
Notwithstanding the foregoing, outside counsel for a receiving Party may retain Protected
Information to the extent such Protected Information is contained in counsel’s work
product, correspondence between outside counsel, or in copies of pleadings and materials
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that are of record in the litigation, subject to the confidentiality provisions of this
Protective Order.
45.
The Clerk of the Court may return to counsel for the parties, or destroy, any sealed
material at the end of the litigation, including any appeals.
46.
The provisions of this Protective Order shall survive and remain in full force and effect
after the termination of this litigation (including any appeals).
47.
The terms and procedures of this Protective Order shall be applicable to any third party
who produces information that is designated by such third party as Protected Information
pursuant to this Protective Order. Nothing in this paragraph permits a Party to designate
as Protected Information any information produced by a third party which that third party
did not itself designate as Protected Information.
48.
Notice under this Protective Order shall be to the parties as follows, unless this provision
is modified by the parties in writing and filed with this Court: notice to Plaintiffs shall be
made to Edgar H. Haug or Sandra Kuzmich; notice to Defendant shall be made to Richard
T. Ruzich or Laura A. Vogel, at their respective addresses of record filed with this Court
for this civil action.
Submitted this 14th day of September, 2011.
APPROVED AND MADE AN ORDER OF THE COURT BY:
____________________________
United States Magistrate Judge
Kathleen M. Tafoya
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FROMMER LAWRENCE & HAUG LLP
Edgar H. Haug
Sandra Kuzmich
745 Fifth Avenue
New York, New York 10151
Telephone: (212) 588-0800
Facsimile: (212) 588-0500
Email: ehaug@flhlaw.com
skuzmich@flhlaw.com
DUANE MORRIS LLP
Richard T. Ruzich
190 South LaSalle Street, Suite 3700
Chicago, Illinois 60603-3433
Telephone: (312) 499-6783
Facsimile: (312) 896-5652
Email: rtruzich@duanemorris.com
DAVIS GRAHAM & STUBBS LLP
DUANE MORRIS LLP
s/Thomas C. Bell
Thomas C. Bell
1550 Seventeenth St.
Suite 500
Denver, Colorado 80202
Email: tom.bell@dgslaw.com
Telephone: (303) 892-9400
Facsimile: (303) 893-1379
s/Laura A. Vogel
Laura A. Vogel
100 High Street, Suite 2400
Boston, MA 02110-1724
Telephone: (857) 488-4200
Facsimile: (857)488-4201
Email: Lavogel@duanemorris.com
WHEELER TRIGG O’DONNELL LLP
Edward C. Stewart
1801 California Street, Suite 3600
Denver, Colorado 80202
Telephone: (303) 244-1800
Facsimile: (303) 244-1879
Email: stewart@wtotrial.com
Attorneys for Plaintiffs
Attorneys for the Defendant
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 1:11-cv-01110-PAB-KMT
SHIRE LLC,
SUPERNUS PHARMACEUTICALS, INC.,
SHIRE DEVELOPMENT INC.,
SHIRE INTERNATIONAL LICENSING
B.V.,
AMY F.T. ARNSTEN, PH.D.,
PASKO RAKIC, M.D., and
ROBERT D. HUNT, M.D.,
Plaintiffs,
v.
SANDOZ INC.
Defendant.
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DECLARATION AND AGREEMENT TO BE BOUND
I, ____________________________________, declare and state under penalty of perjury that:
1. My address is _____________________________________________________________.
2. My present employer is _____________________________ and the address of my present
employer is ___________________________________________________________.
3. My present occupation or job description is
_____________________________________________________________________________.
4. I have received and carefully read the Stipulated Protective Order in the above captioned case,
which is dated ________________, 2011. I certify that I understand the terms of that Protective
Order, recognize that I am bound by the terms of that Order, and agree to comply with those
terms. Further, I understand that unauthorized disclosure of any Protected Information, or its
substance, may constitute contempt of this Court and may subject me to sanctions or other
remedies that may be imposed by the Court and to potential liability in a civil action for damages
by the disclosing party. I hereby submit to the jurisdiction of this Court for the purpose of
enforcement of the Stipulated Protective Order in the above-captioned litigation.
I understand that I will use the Highly Confidential – Attorneys’ Eyes Only or
Confidential Information solely for purposes relating to the above-captioned litigation. In
addition to the foregoing, I understand that I must abide by all of the provisions of the Protective
Order.
At the termination of this litigation or any time requested by counsel, I will return to
counsel for the party by whom I am employed or destroy all documents and other materials,
including notes, computer data, summaries, abstracts, or any other materials containing or
reflecting Highly Confidential – Attorneys’ Eyes Only or Confidential Information that have
come into my possession, and will return or destroy all documents or things I have prepared
relating to or reflecting such Highly Confidential – Attorneys’ Eyes Only or Confidential
Information as required under the terms of the Stipulated Protective Order.
Pursuant to 21 U.S.C. § 1746, I declare under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct.
Executed On:___________________________
_____________________________________________
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