C5 Medical Werks, LLC v. CeramTec GmbH

Filing 50

PROTECTIVE ORDER by Judge R. Brooke Jackson on 1/9/15. (jdyne, )

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-CV-00643 (RBJ)
C5 MEDICAL WERKS, LLC,
Plaintiff,
v.
CERAMTEC GMBH,
Defendant.
______________________________________________________________________________
PROTECTIVE ORDER
______________________________________________________________________________
To expedite the flow of discovery material, to facilitate the prompt resolution of disputes
over confidentiality of discovery materials, to adequately protect information the parties are
entitled to keep confidential, to ensure that only materials the parties are entitled to keep
confidential are subject to such treatment, and to ensure that the parties are permitted reasonably
necessary uses of such materials in preparation for trial, pursuant to Fed. R. Civ. P. 26(c), and
having found good cause, it is hereby ORDERED THAT:
A.

Definitions
1.

Party:

Any party to this action, including all of its officers, directors, and

employees.
2.

Material: All information, documents and things produced, served or otherwise

provided in this action (including, among other things, testimony, transcripts, or tangible things)
by the Parties or by nonparties.

3.

“CONFIDENTIAL” Material:

All information, documents, and things the

Designating Party believes in good faith is not generally known to others, and which the
Designating Party (i) would not normally reveal to third parties except in confidence or has
undertaken with others to maintain in confidence, or (ii) believes in good faith is protected by a
right to privacy under federal or state law or any other applicable privilege or right related to
confidentiality or privacy.
4.

“ATTORNEYS’ EYES ONLY” Material: Information, documents, and things

that are highly proprietary and/or competitively sensitive, and for which the risk of improper use
arising from disclosure outweighs the rights of the Receiving Party to freely review the item.
The designation is reserved for information that constitutes proprietary financial or technical or
commercially sensitive competitive information that the Producing Party maintains as highly
confidential in its business, including information obtained from a nonparty pursuant to a current
Non-Disclosure Agreement (“NDA”), proprietary information relating to future products or
strategic plans, non-public financial data, documents that would reveal trade secrets, licensing
agreements and licensing communications that are designated as “confidential,” and settlement
agreements or settlement communications that are designated as “confidential,” the disclosure of
which is likely to cause harm to the competitive position of the Producing Party.
5.

Producing Party: A Party or nonparty that produces Material in this action.

6.

Receiving Party: A Party that receives Material from a Producing Party.

7.

Designated Material:

Material that is designated “CONFIDENTIAL” or

“ATTORNEYS’ EYES ONLY” pursuant to this Order.

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8.

Designating Party:

A Party or non-party that designates Material as

“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
9.

Counsel of Record: (i) Outside counsel who have filed an appearance in this

action on behalf of one or more Parties; (ii) partners, associates and employees of such counsel
to whom it is reasonably necessary to disclose information for this litigation, including
supporting personnel employed by the attorneys, such as paralegals, legal translators, legal
secretaries, legal clerks and shorthand reporters; and (iii) independent legal translators retained to
translate in connection with this action, or independent shorthand reporters retained to record and
transcribe testimony in connection with this action.
10.

Outside Consultant: A person with specialized knowledge or experience in a

matter pertinent to the litigation who has been retained by a Party or Counsel of Record to serve
as an expert witness or as a consultant in this action and who is not a current employee of a Party
or of a competitor of an opposing Party and who, at the time of retention, is not anticipated to
become an employee of a Party or of a competitor of an opposing Party.
11.

Professional Vendors: Persons or entities that provide litigation support services

(e.g., photocopying; videotaping; translating; designing and preparing exhibits, graphics, or
demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their
employees and subcontractors. This definition includes a professional jury or trial consultant
retained in connection with this litigation and mock jurors retained by such a consultant to assist
them in their work.

Professional Vendors do not include consultants who fall within the

definition of Outside Consultant.

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B.

Scope
12.

The protections conferred by this Order cover not only Designated Material (as

defined above), but also any information copied or extracted therefrom, as well as all copies,
excerpts, summaries, or compilations thereof, regardless of the manner disclosed. Nothing
herein shall alter or change in any way the discovery provisions of the Federal Rules of Civil
Procedure or the Court's deadlines provided in any scheduling order. Identification of any
individual pursuant to this Protective Order does not make that individual available for
deposition or any other form of discovery outside of the restrictions and procedures of the
Federal Rules of Civil Procedure, the Local Rules of Practice for the United States District Court
for the District of Colorado (“D.C.COLO.LCivR”) and/or any relevant scheduling order issued
by the Court.
C.

Access To Designated Material
13.

CONFIDENTIAL Material: Unless otherwise ordered by the Court or permitted

in writing by the Designating Party, a Receiving Party may disclose any information, document
or thing designated “CONFIDENTIAL” only to:
(a)

Counsel of Record;

(b)

A control group of the following individuals for each Party, respectively,

to whom disclosure is reasonably necessary for the management, supervision, or oversight of this
litigation (and supporting personnel), provided that the named individual to whom Designated
Material is disclosed has signed the “Acknowledgment and Agreement To Be Bound By
Protective Order” attached hereto as Exhibit A: Steve Hughes (Vice President, C5), Mark Petty
(Executive Vice President, CoorsTek), and Jonathan Coors (CEO, CoorsTek Medical) for C5;

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and, Dr. Fabian Preuß (Head of Corporate Development and Legal Department, CeramTec
GmbH), Dr. Franz Uppena (European Patent Attorney, Head of Patent, Trademark and Licensing
Department, CeramTec GmbH), Mr. Dieter Burkhardt (Vice President, Sales & Marketing,
CeramTec GmbH) and Dr. Meinhard Kuntz (Manager Oxide Development, CeramTec GmbH)
for CeramTec;
(c)

Persons who appear on the face of Designated Material as an author,

addressee or recipient thereof;
(d)

Subject to the notice and objection procedures of Paragraphs 17 and 18

below, Outside Consultants of the Receiving Party to whom disclosure is reasonably necessary
for this litigation and who have signed the “Acknowledgment and Agreement To Be Bound By
Protective Order” attached hereto as Exhibit A;
(e)

Witnesses at deposition and/or trial, pursuant to the provisions of

Paragraphs 21 and 22, below, provided that such witnesses may not retain copies of Designated
Material unless permitted by other provisions of this Order;
(f)

The Court and its personnel;

(g)

Any designated arbitrator, mediator, or special master who is assigned to

hear this matter (or any part thereof), and his or her staff, who have signed the
“Acknowledgment and Agreement To Be Bound By Protective Order” attached hereto as
Exhibit A;
(h)

Court reporters;

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(i)

Professional Vendors to which disclosure is reasonably necessary for this

litigation and a representative of which has signed the “Acknowledgment and Agreement To Be
Bound By Protective Order” attached hereto as Exhibit A; and
(j)
14.

Any other person to whom the parties must first agree.

ATTORNEYS’ EYES ONLY Material: Unless otherwise ordered by the Court or

permitted in writing by the Designating Party, a Receiving Party may disclose any information,
documents or things designated “ATTORNEYS’ EYES ONLY” Material only to the following
persons and under the following conditions:
(a)

Counsel of Record;

(b)

Persons who appear on the face of Designated Material as an author,

addressee or recipient thereof;
(c)

Subject to the notice and objection procedures of Paragraphs 17 and 18

below, Outside Consultants of the Receiving Party to whom disclosure is reasonably necessary
for this litigation and who have signed the “Acknowledgment and Agreement To Be Bound By
Protective Order” attached hereto as Exhibit A;
(d)

Witnesses at deposition and/or trial, pursuant to the provisions of

Paragraphs 21 and 22, below, provided that such witnesses may not retain copies of Designated
Material unless permitted by other provisions of this Order;
(e)

The Court and its personnel;

(f)

Any designated arbitrator, mediator, or master who is assigned to hear this

matter (or any part thereof), and his or her staff, who have signed the “Acknowledgment and
Agreement To Be Bound By Protective Order” attached hereto as Exhibit A;

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(g)

Court reporters; and

(h)

Professional Vendors to which disclosure is reasonably necessary for this

litigation and a representative of which has signed the “Acknowledgment and Agreement To Be
Bound By Protective Order” attached hereto as Exhibit A.
15.

Each person to whom Designated Material may be disclosed, and who, pursuant

to Paragraphs 13 and 14, is required to sign the “Acknowledgment and Agreement To Be Bound
By Protective Order” attached hereto as Exhibit A, shall do so prior to the time such Designated
Material is disclosed to him or her. Counsel for a party who makes any disclosure of Designated
Material shall retain each original executed certificate and, upon written request, shall provide
copies to Counsel of Record to all other parties at the termination of this action.
16.

At the request of the Designating Party, persons not permitted access to

Designated Material under the terms of this Protective Order shall not be present at depositions
while the Designating Party’s Designated Material is discussed or otherwise disclosed. Pre-trial
proceedings shall be conducted in a manner, subject to the supervision of the Court, to protect
Designated Material from disclosure to persons not authorized to have access to such Material.
Any Party intending to disclose or discuss Designated Material at pretrial proceedings must give
sufficient advance notice to the Producing Party so as to allow the Producing Party reasonable
time to assure the implementation of the terms of this Protective Order.
D.

Access By Outside Consultants
17.

Notice.

If a Receiving Party wishes to disclose another party’s Designated

Material to any Outside Consultant, such Receiving Party must provide notice to counsel for the
Designating Party, which notice shall include: (a) the individual’s name and business title; (b)

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business address; (c) business or profession; (d) the individual’s current resume or CV,
including, but not limited to, a list of any publications; (e) any previous or current relationship
(personal or professional) with any of the parties; (f) a list of other cases in which the individual
has testified (at trial or deposition) within the last seven years; (g) a list of all companies with
which the individual has consulted or by which the individual has been employed within the last
four years; and (h) a signed copy of the “Acknowledgment and Agreement To Be Bound By
Protective Order” attached as Exhibit A.
18.

Objections. The Designating Party shall have ten (10) calendar days from receipt

of the notice specified in Paragraph 17 to object in writing to such disclosure. Any such
objection must set forth in detail the grounds on which it is based. After the expiration of the 10day period, if no objection has been asserted, then Designated Material may be disclosed to the
Outside Consultant pursuant to the terms of this Order. However, if the Designating Party
objects within the 10-day period, the Receiving Party may not disclose Designated Material to
the challenged individual absent resolution of the dispute or Court Order. In the event the
Designating Party makes a timely objection, the parties shall meet and confer to try to resolve the
matter by agreement. If the parties cannot reach an agreement, the objecting Party may within
fifteen (15) business days following its objection, file a motion for a protective order preventing
disclosure of Designated Material to the Outside Consultant or for other appropriate relief. If the
objecting Party fails to file a motion for protective order within the prescribed period, any
objection to the Outside Consultant is waived, and Designated Material may thereafter be
disclosed to such individual (upon signing the “Acknowledgment and Agreement To Be Bound
By Protective Order” attached hereto as Exhibit A). If the objecting Party files a timely motion

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for a protective order, Designated Material shall not be disclosed to the challenged individual
until and unless a final ruling allowing such disclosure is made by this Court or by the consent of
the Objecting Party, whichever occurs first.
E.

Use Of Designated Material
19.

Use Of Designated Material By Receiving Party. Unless otherwise ordered by the

Court or agreed to in writing by the Parties, all Designated Material shall be used by the
Receiving Party only for purposes of this litigation and shall not be used in any other way. The
parties agree that a Receiving Party will treat samples of the other party’s products and any
subsequent testing on the other party’s products under the designation given by the Designating
Party, subject to the challenge provisions set forth in Paragraphs 29 and 30.
20.

Use Of Designated Material By Designating Party. Nothing in this Order shall

limit any Designating Party’s use of its own confidential information, nor shall it prevent the
Designating Party from disclosing its own confidential information, documents or things to any
person. Such disclosure shall not affect any designations made pursuant to the terms of this
Order, so long as the disclosure is made in a manner that is reasonably calculated to maintain the
confidentiality of the information.
21.

Use of Designated Material at Depositions. Except as may be otherwise ordered

by the Court:
(a)

A present director, officer, employee, designated Rule 30(6)(b) witness,

and/or Outside Consultant of a Producing Party may be examined and may testify concerning all
Designated Material of that Producing Party;

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(b)

A former director, officer, agent and/or employee of a Producing Party

may be examined and may testify concerning all Designated Material of that Producing Party
that appears on its face or is established from other documents or testimony to have been
previously received from or communicated to that person; and
(c)

Nonparties may be examined and may testify concerning any document

containing Designated Material of a Producing Party that appears on its face or is established
from other documents or testimony to have been previously received from the Producing Party or
communicated to or from the non-party as a result of any contact or relationship with the
Producing Party, or a representative of the Producing Party.
Any person other than (i) the witness, (ii) his or her attorney(s), or (iii) any person
qualified to receive Designated Material under this Order, shall be excluded from the portion of
the examination concerning such information, unless the Designating Party consents to persons
other than qualified recipients being present at the examination. If the witness is represented by
an attorney who is not qualified under this Order to receive such information, then prior to the
examination, the attorney shall be requested to sign the “Acknowledgment and Agreement To Be
Bound By The Protective Order” in the form of Exhibit A hereto. In the event that such attorney
declines to sign such an “Acknowledgment and Agreement To Be Bound By The Protective
Order,” prior to the examination, the parties, by their attorneys, may jointly seek a protective
order from the Court prohibiting such attorney from disclosing such Designated Material.
22.

Subject to paragraph 21, a witness who is not under a present non-disclosure

agreement with the Producing Party, may only be shown Designated Material of that Producing
Party if a copy of this Protective Order is attached to any subpoena or notice or request served on

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the witness for the deposition; and the witness is advised on the record of the existence of the
Protective Order and that the Protective Order requires the parties to keep confidential any
questions,

testimony or documents

that

are designated

as

“CONFIDENTIAL” or

“ATTORNEYS’ EYES ONLY.” The witness may not copy, take notes on or retain copies of
any Designated Material used or reviewed at the deposition. The witness may not take out of the
deposition room any exhibit that is marked “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY.” The Producing Party of any Designated Material used at the deposition may also
require that the transcript and exhibits not be copied by the witness and only as reasonably
necessary by his or her counsel, that no notes may be made of the transcript or the exhibits by the
witness, and that the transcript and exhibits may only be sent to and reviewed by the witness for
the purposes of verifying the accuracy of the transcript. Notwithstanding the foregoing, a
witness may review with counsel any Designated Material referenced or used at his or her
deposition, or otherwise disclosed to that person by the Designating Party, in preparation for
trial.
F.

Procedure for Designating Materials
23.

Subject to the limitations set forth in this Order, a Designating Party may

designate as “CONFIDENTIAL” information the Designating Party believes, in good faith,
meets the definition set forth in Paragraph 3 above and a Designating Party may designate as
“ATTORNEYS’ EYES ONLY” information the Designating Party believes, in good faith, meets
the definition set forth in Paragraph 4 above.

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24.

Except as otherwise provided in this Order or as otherwise stipulated or ordered,

Material that qualifies for protection under this Order must be designated in accordance with this
Section F before the material is disclosed or produced.
25.

Designation in conformity with this Order requires:
(a)

For information in documentary form (apart from transcripts of

depositions or other pretrial proceedings), the Producing Party shall affix the legend
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as appropriate, on each page that
contains Designated Material.
(b)

For testimony given in deposition or in other pretrial proceedings, the

Designating Party shall specify any portions of the testimony that it wishes to designate as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” All deposition transcripts not marked
at least “CONFIDENTIAL” during the deposition will nonetheless be treated as “ATTORNEYS’
EYES ONLY” until thirty (30) days after receipt of the final transcript, in order to allow counsel
to review the transcript and designate portions thereof in accordance with this Protective Order.
Transcript pages containing Designated Material must be separately bound by the court reporter,
who must affix to the top of each such page the legend “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY,” as instructed by the Designating Party.
(c)

For information produced in some form other than documentary, and for

any other tangible items, the Producing Party shall affix in a prominent place on the exterior of
the container or containers in which the information or thing is stored the legend
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as appropriate.

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G.

No Waiver of Privilege
26.

Pursuant to Fed. R. Civ. P. 26(b)(5)(B) and Fed. R. Evid. 502, inspection or

production of documents (including physical objects) shall not constitute a waiver of the
attorney-client privilege or work product immunity or any other applicable privilege or immunity
from discovery if, after the Producing Party becomes aware of any inadvertent or unintentional
disclosure, the Producing Party promptly designates any such documents as within the attorneyclient privilege or work product immunity or any other applicable privilege or immunity, and
requests in writing return of such documents to the Producing Party with the basis for the
assertion of privilege or immunity. Upon request by the Producing Party, the Receiving Party
shall promptly return all copies of such inadvertently produced document(s), and shall not use or
disclose any inadvertently produced material or information for any purpose unless and until the
asserted privileges or immunities have been successfully challenged or withdrawn. Nothing
herein shall prevent the Receiving Party from challenging the propriety of the attorney-client
privilege or work product immunity or other applicable privilege or immunity designation by
submitting a written challenge to the Court, except that no such challenge may assert the
inadvertent or unintentional disclosure as a ground for requiring production.
H.

Inadvertent Failure To Designate
27.

An inadvertent failure to designate qualified Material as “CONFIDENTIAL” or

“ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating Party’s right to
secure protection under this Order for such Material. Upon discovery of an inadvertent failure to
designate, as soon as reasonably possible, a Producing Party or Designating Party may notify the
Receiving Party in writing that the material is to be designated as “CONFIDENTIAL” or

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“ATTORNEYS’ EYES ONLY” with the basis for such designation(s). Upon receipt of such
notice, the Receiving Party must make reasonable efforts to assure that the material is treated in
accordance with the terms of this Order, subject to the right to challenge the propriety of such
designation(s). The Designating Party shall promptly provide substitute copies of documents
bearing the confidentiality designation.
I.

Filing Designated Material
28.

The parties will adhere to the Court’s Practice Standards (revised December 30,

2014), including redacting materials designated “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” or containing “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” from public
filings. The parties acknowledge that under the Court’s Practice Standards, any document or
tangible thing designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” or
containing “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” information that is filed with
the Court or introduced at a hearing or during trial may retain its protected confidential status
only by Order of the Court. The parties shall consider and confer about the possibility of
redacting documents containing information designated “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” before filing or introducing such documents with the Court. If information
designated “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” is necessary to the
determination of an issue and must be filed with the Court in un-redacted form, the parties will
comply with D.C.COLO.LCivR 7.2.
J.

Challenge and Withdrawal of Confidentiality Designations
29.

The parties will use reasonable care when designating documents or information

as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” Nothing in this Order shall prevent a

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Receiving Party from contending that any or all documents or information designated as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” have been improperly designated. A
Receiving Party may at any time request that the Producing Party cancel or modify such
designations with respect to any document or information contained therein.
30.

A party shall not be obligated to challenge the propriety of a “CONFIDENTIAL”

or “ATTORNEYS’ EYES ONLY” designation at the time made, and the failure to do so shall
not preclude a subsequent challenge thereto. Such a challenge shall be written, shall be served
on counsel for the Designating Party, and shall particularly identify the Designated Material that
the Receiving Party contends should be differently designated. The parties shall use their best
efforts to resolve promptly and informally such disputes. If agreement cannot be reached within
ten (10) calendar days of notice being provided, the Receiving Party shall request that the Court
cancel or modify the designation set by the Producing Party. The burden shall be on the
Designating Party to show that the designation is proper.
K.

Protected Material Subpoenaed or Ordered Produced In Other Litigation
31.

If a Receiving Party is served with a subpoena or a court order that would compel

disclosure of any information, documents or things designated in this action as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” the Receiving Party must so notify the
Designating Party, in writing (by fax or e-mail) promptly and in no event more than ten (10)
calendar days after receiving such subpoena or order. Such notification must include a copy of
such subpoena or order. The Receiving Party also must promptly inform in writing the party
who caused the subpoena or order to issue 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

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copy of this Protective Order promptly to the party that caused the subpoena or order to issue.
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 Designated Material. 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.
L.

Prosecution Bar
32.

Absent written consent from the Producing Party, any individual who receives

ATTORNEYS’ EYES ONLY Designated Material, shall not be involved in the prosecution of
patents or patent applications relating to zirconium toughened alumina ceramic composites
and/or orthopedic hip replacements containing zirconium toughened alumina ceramic
composites, including without limitation the patents described in the pleadings in this action and
any patent or application claiming priority to or otherwise related to those patents, before any
foreign or domestic agency, including the United States Patent and Trademark Office (“the
Patent Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly
drafting, amending, advising, or otherwise affecting the scope or maintenance of patent claims.
To avoid any doubt, “prosecution” as used in this paragraph does not include representing a party
challenging a patent before a domestic or foreign agency (including, but not limited to, inter
partes review). This Prosecution Bar shall begin when access to ATTORNEYS’ EYES ONLY
Designated Material is first received by the affected individual and shall end two (2) years after
final termination of this action.

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M.

Unauthorized Disclosure Of Designated Material
33.

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Designated Material to any person or in any circumstance not authorized under this Order, the
Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all copies of the Designated 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 “Acknowledgment and Agreement To Be
Bound” that is attached hereto as Exhibit A.
N.

Nonparty Use of This Protective Order
34.

A nonparty producing information or material voluntarily or pursuant to a

subpoena or a court order may designate such material or information in the same manner and
shall receive the same level of protection under this Protective Order as any party to this lawsuit.
35.

A nonparty’s use of this Protective Order to protect its “CONFIDENTIAL”

Materials or “ATTORNEYS’ EYES ONLY” Materials does not entitle that non-party access to
“CONFIDENTIAL” Materials or “ATTORNEYS’ EYES ONLY” Materials produced by any
Party in this case.
O.

Discovery from Outside Consultants
36.

Outside Consultants, who serve as testifying experts, shall not be subject to

discovery of any draft report, notes, outlines, or the like prepared by or on behalf of the testifying
expert, and which relates to an expert report submitted in this case pursuant to Fed. R. Civ. P.
26(a)(2).

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37.

Discovery of materials provided to testifying experts shall be limited to those

materials, facts, consulting expert opinions, and other matters actually relied upon by the
testifying expert in forming his or her final report, trial or deposition testimony or any opinion in
this case. No discovery can be taken from any Outside Consultant who does not testify except to
the extent any Outside Consultant has provided information, opinions or other materials to a
testifying expert, who then relies upon such information, opinions or other materials in forming
his or her final report, trial and/or deposition testimony or any opinion in this case.
38.

No conversations or communications between counsel and any Outside

Consultant will be subject to discovery unless the conversations or communications are relied
upon by a testifying expert in formulating opinions that are presented in reports or trial or
deposition testimony in this case.
39.

Materials, communications and other information exempt from discovery under

the foregoing Paragraphs shall be treated as attorney-work product for the purposes of this
litigation and Protective Order.
P.

Duration
40.

Even after the termination of this action, 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.
Q.

Final Disposition
41.

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

sixty (60) calendar days following the first to occur of (i) the complete resolution of this case
through entry of a final non-appealable judgment or order for which appeal has been exhausted,

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or (ii) the complete settlement of all claims against all the Parties in this action, the Receiving
Party must submit a written confirmation of the return or destruction of all Designated Material
to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60day deadline. Notwithstanding this provision, Counsel of Record may retain an archival copy of
all pleadings, motion papers, deposition transcripts (including exhibits), transcripts of other
proceedings (including exhibits), expert reports (including exhibits), discovery requests and
responses (including exhibits), exhibits offered or introduced into evidence at trial, legal
memoranda, correspondence or attorney work product, even if such materials contain Designated
Material. Any such archival copies that contain or constitute Designated Material remain subject
to this Protective Order as set forth in Section P (Duration), above. As used in this Paragraph,
“all Designated Material” includes all copies, abstracts, compilations, summaries or any other
form of reproducing or capturing any of the Designated Material.
R.

Miscellaneous
42.

Any of the notice requirements herein may be waived, in whole or in part, but

only by a writing signed by the Counsel of Record for the Party against whom such waiver will
be effective.
43.

This Order is entered without prejudice to the right of any Party to apply to the

Court at any time for additional protection or to relax or rescind any or all restrictions of this
Order, when necessity requires. Nothing in this Order abridges the right of any person to seek to
assert other objections.

No Party waives any right it otherwise would have to object to

disclosing or producing any information, documents, or things on any ground not addressed in
this Protective Order. Similarly, no Party waives any right to object on any ground to the use in

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evidence of any of the material covered by this Protective Order.

The Court shall take

appropriate measures to protect Designated Material in any hearing in this case.
44.

This Order shall not diminish any existing obligation or right with respect to

Designated Material, nor shall it prevent a disclosure to which the Designating Party consents in
writing before the disclosure takes place.
45.

Nothing contained herein shall impose any restrictions on the use or disclosure by

a party of Material designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” that:
(a)

Was, is, or becomes public knowledge in a manner other than by violation

of this Protective Order;
(b)

Is acquired by the non-designating party from a third party having the

right to disclose such information or material; and/or
(c)

Was lawfully possessed by the non-designating party prior to the entry of

this Order by the Court.
46.

Nothing contained herein shall constitute a waiver of:
(a)

Any party’s right to object to any discovery request on any ground;

(b)

Any party’s right to seek an order compelling discovery with respect to

any discovery request;
(c)

Any party’s right in any proceeding in this lawsuit to object to the

admission of evidence on any ground; and/or
(d)

Any party’s right to use and/or disclose its own documents and its own

“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” Designated Material in its sole and
complete discretion.

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47.

The United States District Court for the District of Colorado is responsible for the

interpretation and enforcement of this Protective Order. All disputes concerning Designated
Material produced under the protection of this Protective Order shall be resolved by the United
States District Court for the District of Colorado. Every individual who receives any Designated
Material agrees to subject himself or herself to the jurisdiction of this Court for the purpose of
any proceedings related to performance under, compliance with, or violation of this Order.
48.

The Court reserves the right, upon Motion or upon its own Motion, to amend or

modify this Protective Order for good cause shown.
DATED at Denver, Colorado, this 9th day of January, 2015.

BY THE COURT:

_________________________________
R. Brooke Jackson
U.S. District Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
BY PROTECTIVE ORDER
I, _____________ [print or type full name], state:
1.

I reside at _________________________________________________________;

2.

My present employer is ______________________________________________;

3.

My present occupation or job description is ______________________________;

4.

I agree to keep confidential all information provided to me in the matter of C5

Medical Werks, LLC v. CeramTec GmbH, Civil Action No. 1:14-cv-00643, in the United States
District Court for the District of Colorado, and to be subject to the authority and jurisdiction of
that Court in the event of any violation or dispute related to this agreement.
5.

I agree to use any Designated Material provided to me in this matter for the

purposes of this litigation only, and will not use such information in any other way.
6.

I have reviewed the Protective Order entered in this case in its entirety,

understand its terms, and I will not divulge any information, documents or things that are subject
to the Protective Order except in accordance with the provisions of the Order.
7.

I state under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct.

Executed on _________________________
____________________________________
[printed name]
____________________________________
[signature]

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