Bio Med Technologies Corporation et al v. ELA Medical, Inc.

Filing 26

PROTECTIVE ORDER approved by Magistrate Judge Craig B. Shaffer on 04/25/2014. (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-00154-WJM-CBS

BIO MED TECHNOLOGIES CORPORATION,
Plaintiff,
v.
SORIN CRM USA, INC., f/k/a ELA MEDICAL, INC.,
Defendant.
_________________________________________________________________
STIPULATED PROTECTIVE ORDER
_________________________________________________________________
Plaintiff Bio Med Technologies Corporation and Defendant Sorin CRM USA, Inc.
(collectively, the “Parties”) hereby stipulate and move the Court for a Protective Order
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment
of Confidential Information (as hereinafter defined), and, in support thereof, state as
follows:
1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

information or documents that one or more Parties or other Third Parties have deemed
confidential. This Protective Order governs the production and treatment of such
information and documents, on the terms and conditions set forth below.

2.

DEFINITIONS
2.1

Party: any party to this action, including all of its officers, directors,

employees, consultants, retained experts, and Counsel (and their respective support
staff).
2.2

Non-Party: an entity or individual not named in this action, including all of

its officers, directors, employees, consultants, retained experts, and Counsel (and their
respective support staff).
2.3

Counsel: any attorney employed or retained who represents a Party or

Non-Party in this action. This definition shall apply to all attorneys of a law firm,
regardless of whether any individual attorney has entered an appearance in the case.
2.4

Discovery Material: all items or information, regardless of the medium or

manner generated, stored, or maintained (including, among other things, testimony,
transcripts, or tangible things) that are produced or generated in disclosures or
responses to discovery in this matter.
2.5

“Confidential” Information: “Confidential” Information includes all non-

public materials containing information regarding, but not limited, to: (i) financial or
business plans or projections; (ii) proposed strategic transactions and other business
combinations, negotiations, inquiries or agreements including, but not limited to, joint
ventures, mergers, purchases, buy-outs, consolidations, transfers of interests and
partnerships; (iii) trade secrets, trading systems and proprietary technical information;
(iv) studies or analyses by internal or outside experts or consultants; (v) financial or
accounting results or data; (vi) customer lists, bids, solicitations and information; (vii)

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competitive analyses; (viii) personnel files or data; (ix) product development and
planning; (x) personal financial, tax or employment information; (xi) business,
management and marketing plans and strategies; (xii) costs of goods and services; (xiii)
pricing of goods and services; (xiv) acquisition offers and expressions of interests; (xv)
contracts or agreements with customers, employees, affiliates or partners; (xvi)
complaints, disputes, litigation, mediation or arbitration with customers, employees,
affiliates or partners; (xvii) stockholder lists, registers and data; and (xviii) other
personally sensitive or proprietary information.
2.6

Receiving Party: a Party that receives Discovery Material from a

Producing Party.
2.7

Producing Party: a Party or Non-Party that produces Discovery Material in

this action.
2.8

Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as “Confidential.”
2.9

Protected Material: any Discovery Material that is designated as

“Confidential.”
2.10

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who: (a) has been retained by a Party or its Counsel to serve
as an expert witness or as a consultant in this action; (b) is not a past or a current
employee of a Party or of a competitor of a Party; and (c) at the time of retention, is not
anticipated to become an employee of a Party or a competitor of a Party.

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2.11

Professional Vendors: persons or entities that provide litigation support

services (e.g., photocopying; videotaping; translating; preparing exhibits or
demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and
their employees and subcontractors.
3.

SCOPE
The protections conferred by this Protective Order cover not only Protected

Material, but also any information copied or extracted therefrom, as well as all copies,
excerpts, summaries, or compilations thereof, as well as deposition testimony,
conversations, or presentations by any Party or Counsel to or in court or in other
settings that might reveal Protected Material. This excludes presentation in any public
trial or judicial proceeding.
4.

DURATION
Even after the termination of this litigation, the confidentiality obligations imposed

by this Order shall remain in effect until a Designating Party agrees otherwise in writing
or a court order otherwise directs.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under this
Order must take care to limit any such designation to specific material that qualifies
under the appropriate standards. If it comes to a Party’s or a Non-Party’s attention that
Discovery Material that it designated for protection does not qualify for protection, that

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Party or Non-Party must promptly notify all other parties that it is withdrawing the
designation and remove the designation of the relevant Discovery Material.
5.2

Manner and Timing of Designations. Except as otherwise provided in this

Order (see, e.g., Section 5.2(b)), or as otherwise stipulated or ordered, material that
qualifies for protection under this Order must be clearly so designated before the
material is disclosed or produced. Discovery Material shall be designated as follows:
(a)

For information in documentary form (apart from transcripts of depositions

or other pretrial or trial proceedings), the Producing Party shall affix the legend
“Confidential” on each page that contains Protected Material. A Party or Non-Party that
makes original documents or materials available for inspection must designate them for
protection at the time of production or After the inspecting Party has identified the
documents to be copied and produced, the Producing Party must determine which
documents, or portions thereof, qualify for protection under this Order, then, before
producing the specified documents, the Producing Party must affix the legend
“Confidential” on each document or the portion of the document that contains Protected
Material.
(b)

For testimony given in deposition or in other pretrial or trial proceedings in

this case, the Party or Non-Party offering or sponsoring the testimony shall identify on
the record, before the close of the deposition, hearing, or other proceeding, all protected
testimony, and further specify any portions of the testimony that qualify as
“Confidential.” The Party or Non-Party that sponsors, offers, or gives the testimony may
also designate the testimony as a whole. Testimony that is designated as a whole shall

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cease to be protected under this Order on the 21st day after receipt of the deposition
transcript by Counsel for the witness unless, before that time has elapsed, the witness,
his/her employer, or Counsel: (i) informs the deposing party in writing that protected
testimony of the witness or his employer is set forth in the transcript; and (ii) identifies in
writing the portions of the transcript containing the protected testimony. Transcript
pages containing Protected Material resulting from this action must be separately bound
by the court reporter, who must affix to the top of each such page the legend
“Confidential,” as instructed by the Party or Non-Party offering or sponsoring the witness
or presenting the testimony.
(c)

For electronic documents produced in native format, the Producing Party

shall include the legend “Confidential” in the file name for each natively produced
document that contains Protected Material.
(d)

For information produced in non-documentary form, and for any other

tangible items, that the Producing Party affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend
“Confidential.”
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items as “Confidential” does not, standing
alone, waive the Designating Party’s right to secure protection under this Order for such
material. If material is appropriately designated as “Confidential” after the material was
initially produced, the Receiving Party, on timely notification of the designation, must

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make reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Unless a prompt challenge to a Designating Party’s

confidentiality designation is necessary to avoid foreseeable substantial unfairness,
unnecessary economic burdens, or a later significant disruption or delay of the litigation,
a Party does not waive its right to challenge a confidentiality designation by electing not
to mount a challenge promptly after the original designation is disclosed.
6.2

Meet and Confer. A Party that elects to initiate a challenge to a

Designating Party’s confidentiality designation must do so in good faith and must begin
the process by conferring directly with counsel for the Designating Party. In conferring,
the challenging Party must explain the basis for its belief that the confidentiality
designation was not proper and must give the Designating Party an opportunity to
review the designated material, to reconsider the circumstances, and, if no change in
designation is offered, to explain the basis for the chosen designation. A challenging
Party may proceed to the next stage of the challenge process only if it has engaged in
this meet and confer process first. If, however, a Party has initiated a challenge to a
Designating Party’s confidentiality designation, in writing, and the Designating Party
does not respond within 10 business days, the challenging Party may proceed to the
next stage of the challenge process.
6.3

Judicial Intervention. A Party that elects to press a challenge to a

confidentiality designation after considering the justification offered by the Designating

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Party, or after not receiving a response from the Designating Party within 5 business
days after initiating the challenge, may file a motion that identifies the challenged
material and sets forth in detail the basis for the challenge, provided that the challenging
Party has otherwise complied with this Court’s procedures for resolving discovery
disputes. Each such motion must be accompanied by a competent declaration that
affirms that the movant has complied with the meet and confer requirements imposed in
the preceding paragraph and that sets forth with specificity the justification for the
confidentiality designation that was given by the Designating Party in the meet and
confer dialogue, if any. The burden of persuasion in any such challenge proceeding
shall be on the Designating Party. Until the court rules on the challenge, all parties shall
continue to treat the material in question as “Confidential.”
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. All Protected Information shall be used solely for the

purposes of litigation between the parties in this action, and no person receiving such
Protected Information shall, directly or indirectly, use, transfer, disclose, or communicate
in any way the contents of the Protected Material to any person other than those
specified in this Protective Order. Protected Material must be stored and maintained by
a Receiving Party at a location and in a secure manner that ensures that access is
limited to the persons authorized under this Order. Any use of Protected Material
governed by this Protective Order for competitive or other purposes is prohibited.

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7.2

Disclosure of “Confidential” Information or Items. Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party
may disclose any information or item designated “Confidential” only to:
(a)

The Receiving Party’s Counsel in this action, as well as employees of said

Counsel to whom it is reasonably necessary to disclose the information for this litigation;
(b)

The officers, directors, and employees of the Receiving Party who have

signed the “Acknowledgement and Agreement to Be Bound by Protective Order”
attached hereto as Exhibit A. All persons who have access to material protected under
this Protective Order shall be bound by its terms, even after leaving the employ of a
Party.
(c)

Subject to the provisions in Paragraph 8, below, Experts of the Receiving

Party to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgement and Agreement to Be Bound by Protective Order”
attached hereto as Exhibit A;
(d)

The Court and its personnel;

(e)

Court reporters, their staffs, and Professional Vendors to whom disclosure

is reasonably necessary for this litigation; and
(f)

The author of the document, the original source of the information, and

others who had access to the document or the information at the time it was created or
made available, as determined from the face of the document in question, reference
information in other documents, or the testimony of other witnesses.

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8.

WRITTEN ASSURANCE
Each person designated pursuant to Paragraph 7.2(c) to receive Protected

Material shall execute the “Acknowledgement and Agreement to Be Bound by
Protective Order” attached as Exhibit A (“Written Assurance”) prior to receiving any
Protected Material, except that a Written Assurance is not required (i) for support
personnel for such Experts, or (ii) to provide assistance as mock jurors or focus group
members.
Counsel for the Party or Non-Party that has produced such Protected Material
shall be notified in writing at least 5 business days prior to any intended disclosure of
such Protected Material to any person designated pursuant to Paragraph 7.2(c), where
such person is presently performing work for any medical device company in the
cardiac rhythm management field. When such notice is required it shall provide a
sufficient description of the person to whom disclosure is sought to permit objection to
said disclosure, together with the executed Written Assurance for such person.
If the Producing Party objects in writing to such disclosure within 5 business days
after receipt of notice, no disclosure of any such Protected Material shall be made until
the party seeking disclosure obtains the approval of the Court or the objecting party or
third party. In such a case of objection to disclosure, the Parties and any Non-Parties
will confer and in good faith attempt to reach agreement. If the requested disclosure is
not ultimately agreed to, the party seeking to disclose such Protected Material may
move the Court for appropriate relief. The Party or Non-Party objecting to the
disclosure shall have the burden of proving that such Protected Material warrants

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protection from disclosure to said designated person. Under such circumstances, no
disclosure will occur until the Court has resolved the dispute.
9.

THIRD PARTIES
Non-Parties producing documents or providing testimony in the course of this

case may also designate Discovery Material as “Confidential” subject to the same
protections and constraints as the Parties to the case. A copy of this Protective Order
shall be served along with any subpoena served in connection with this case. All
Discovery Material produced by such Non-Parties shall be treated as “Confidential” for
10 business days from the date of their production, and during that period any Party
may designate such Discovery Material pursuant to the terms of the Protective Order.
10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other

litigation that would compel disclosure of any information or items designated in this
action as “Confidential,” the Receiving Party must notify the Designating Party in writing
promptly, and in no event more than 10 business days after receiving the subpoena or
order. Such notification must include a copy of the subpoena or court order.
The Receiving Party also must inform the Party who caused the subpoena or
order to issue in the other litigation that some or all the material covered by the
subpoena or order is the subject of this Protective Order. In addition, the Receiving
Party must deliver a copy of this Protective Order to the Party in the other action that
caused the subpoena or order to issue.

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The purpose of imposing these duties is to alert the interested parties to the
existence of this Protective Order and to afford the Designating Party in this case an
opportunity to try to protect its confidentiality interests in the court from which the
subpoena or order issued. The Designating Party shall bear the burdens and the
expenses of seeking protection in that court of its confidential material, and nothing in
these provisions should be construed as authorizing or encouraging a Receiving Party
in this action to disobey a lawful directive from another court.
11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party must immediately (a) notify the Designating Party
in writing of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of
the Protected Material, (c) inform the person or persons to whom unauthorized
disclosures were made of all the terms of this Order, and (d) request such person or
persons to execute the Written Assurance that is attached hereto as Exhibit A.
12.

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
Nothing in this Protective Order shall require production of information which a

Party or any Non-Party contends is protected from disclosure by the attorney-client
privilege or the work product immunity. If information subject to a claim of attorneyclient privilege or work product immunity is nevertheless inadvertently produced, such
production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as
to, any claim of privilege or work product immunity for such information. If a Party has

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inadvertently produced to the other Party information subject to claim of immunity or
privilege, the other Party upon request shall promptly return, delete or destroy the
document (as well as any and all copies) for which a claim of inadvertent production is
made and shall certify to that effect. The Party returning such information may then
move the Court for an Order compelling production of such information (provided that
the challenging Party has otherwise complied with this Court’s procedures for resolving
discovery disputes), but the motion shall not assert as a ground for production the fact
or circumstances of the inadvertent production. In such a circumstance, the challenging
party may retain one copy of each document that is subject to the challenged claim of
privilege for the sole purpose of pursuing the challenge.
13.

FILING PROTECTED MATERIAL
Absent written permission from the Designating Party or a court order secured

after appropriate notice to all interested persons, a Party may not file in the public
record in this action any Protected Material. A Party seeking to file Protected Material
under seal with the Court must follow the procedures set forth in D.C.COLO.LCivR 7.2.
All restricted documents shall be served on the non-filing party outside of the CM/ECF
system. Either Party may seek further protections from the Court prior to disclosure of
materials or information designated as “Confidential” at trial or a hearing.
14.

FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within 60

days after the final termination of this action (including any appeals), each Receiving
Party must either destroy or return all Protected Material to the Producing Party. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries or any other form of reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the Producing Party (and, if not the
same person or entity, to the Designating Party) by the 60 day deadline that certifies
that the Protected Material was returned or destroyed. Notwithstanding this provision,
Counsel are entitled to retain an archival copy of all pleadings, motion papers,
transcripts, legal memoranda, correspondence or attorney work product (including work
product of retained outside independent persons), even if such materials contain
Protected Material. Any such archival copies that contain or constitute Protected
Material remain subject to this Protective Order as set forth in Section 4, above.
15.

MISCELLANEOUS
15.1

Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.
15.2

Right to Assert Other Objections. By stipulating to the entry of this

Protective Order no Party waives any right it otherwise would have to object to
disclosure or production of any information or item on any ground not addressed in this
Protective Order. Similarly, no Party waives any right to object on any ground to use in
evidence of any of the material covered by this Protective Order.

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STIPULATED AND AGREED BY THE PARTIES:

/s/ JoAnne Zboyan
JoAnne Zboyan
Springer and Steinberg, P.C.
1600 Broadway, Suite 1200
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

/s/ Jared B. Briant
Faegre Baker Daniels LLP
3200 Wells Fargo Center
1700 Lincoln St.
Denver, CO 80203
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Brian J. Rayment
Kivell, Rayment & Francis, P.C.
7666 East 61st St., Suite 550
Tulsa, OK 74133
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Kathryn A. Feiereisel
Faegre Baker Daniels LLP
311 S. Wacker Drive, Suite 4400
Chicago, IL 60606-6622
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Counsel for Plaintiff

Counsel for Defendant

ENTERED BY THE COURT this 25th day of April 2014.

s/Craig B. Shaffer
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT
TO BE BOUND BY PROTECTIVE ORDER
I, __________________________, currently office at ____________________,
in the city of _________________, state of __________________. I am currently
employed by _______________________________ and my current job title is
_________________________________________.
I have read in its entirety and understand the Stipulated Protective Order dated
____________, entered in the in Bio Med Technologies Corp. v. Sorin CRM USA, Inc.,
Civil Action No. 14-cv-00154-WJM-CBS (D. Colo.). I agree to comply with and to be
bound by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions by the Court. I
shall not use or disclose in any manner any Protected Information that is subject to this
Stipulated Protective Order to any person or entity except in strict compliance with the
provisions of this Order.
I submit myself to the jurisdiction of the United States District Court for the
District of Colorado for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on: __________________
(Date)

______________________
(Signature)

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