Regents of the University of Colorado, The v. Allergan, Inc. et al

Filing 67

Stipulated PROTECTIVE ORDER, by Magistrate Judge Nina Y. Wang on 3/25/2015. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-CV-01562-MSK-NYW
THE REGENTS OF THE UNIVERSITY OF COLORADO,
Plaintiff,
v.
ALLERGAN, INC.
and ALLERGAN BOTOX LIMITED,
Defendants.

[PROPOSED] STIPULATED PROTECTIVE ORDER

WHEREAS, the parties to the above-captioned case (the “Action” and the “Parties”) may
seek discovery of documents, information or other materials that may constitute or contain
sensitive proprietary information, such as trade secrets or other confidential research,
development or commercial information, of other parties or third parties within the meaning of
Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”);
WHEREAS such trade secret, confidential, or proprietary information must be protected
in order to preserve the legitimate business interests of the parties or other persons;
WHEREAS the parties have, through counsel, stipulated to the entry of this Stipulated
Protective Order to advance this Action and prevent unnecessary dissemination or disclosure of
such secret or other confidential research, development, or commercial information; and
WHEREAS the parties have established good cause for entry of this Stipulated Protective Order;

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NOW THEREFORE, pursuant to Federal Rule of Civil Procedure 26(c), upon the
stipulation and consent of the parties and for good cause shown, the Court hereby ORDERS that:
1.

This Stipulated Protective Order (the “Order”) shall govern the disclosure, production

and use of information, documents and tangible things in connection with the Action.
2.

SCOPE OF PROTECTIVE ORDER

(a)

Confidential Information - Any producing person, entity or third party (“producing

party”) may designate any information, document or tangible item to be disclosed and/or
produced to any other person or entity (“receiving party”) as CONFIDENTIAL
INFORMATION if the producing party claims in good faith that such information, document or
tangible item embodies, constitutes, contains, reveals, relates to, or reflects proprietary or
confidential information within the meaning of Federal Rule of Civil Procedure 26(c)(1)(G).
The producing party must give notice, as provided in this Order, that such information, document
or tangible item comprises or contains CONFIDENTIAL INFORMATION.
(b)

Highly Confidential Information – Any producing party may designate any information,

document or tangible item to be disclosed and/or produced to any receiving party as HIGHLY
CONFIDENTIAL INFORMATION if the producing party claims in good faith that such
information, document or tangible item (i) embodies, constitutes, contains, reveals, relates to, or
reflects proprietary or confidential information within the meaning of Federal Rule of Civil
Procedure 26(c)(1)(G), (ii) would not normally be revealed to third parties except in confidence
or has been maintained as confidential in the past, or (iii) is significantly sensitive or protected
by a right to privacy under federal or state law or any other applicable privilege or right related to
confidentiality or privacy. The producing party must give notice, as provided in this Order, that
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such information, document or tangible item comprises or contains HIGHLY CONFIDENTIAL
INFORMATION.
(c)

Non-Confidential Information - CONFIDENTIAL INFORMATION and HIGHLY

CONFIDENTIAL INFORMATION shall not include:
(1)

Information that was or is in the public domain at the time of disclosure, not in

violation of this Order;
(2)

Information which after disclosure is published or becomes part of the public

domain, through no fault of a person receiving information under this Order, but only
after it is published or comes into the public domain not in violation of this Order;
(3)

Information that is in the possession of a party receiving such information without

any confidentiality obligations at the time of disclosure, and such information was
received from a source that possessed the right to disclose it without any such
confidentiality obligations; or
(4)

Information disclosed by a third party that is not subject to any confidentiality

obligations at the time of the disclosure; or
(5)

Information that is discovered independently by the receiving party by means that

do not constitute a violation of this Order; or
(6)

Information that was, is, or becomes expressly released from being designated

CONFIDENTIAL INFORMATION (as defined below), by the producing party or by
order of the Court.
(d)

Designation of CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL

INFORMATION - All information, documents or tangible items to be produced in tangible form
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that the producing party wishes to designate as CONFIDENTIAL INFORMATION or HIGHLY
CONFIDENTIAL INFORMATION must, prior to production to the receiving party, be labeled
by the producing party with the legend: “CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER” or “HIGHLY CONFIDENTIAL INFORMATION - SUBJECT TO PROTECTIVE
ORDER,” as appropriate, or suitable equivalents thereof.
(e)

Documents for Inspection - All information, documents, or tangible things made

available for inspection (such as for selection of materials for copying and production) shall be
treated as information designated CONFIDENTIAL INFORMATION until produced in tangible
form by the producing party. Once produced in tangible form, the information, documents or
tangible things shall be treated as labeled by the producing party under the provisions of this
Order.
(f)

Depositions and Oral Disclosures - All information to be disclosed at a deposition, or

otherwise orally, shall be automatically designated as CONFIDENTIAL INFORMATION for a
period of thirty (30) days from the date the deposition transcript becomes available.1 Thereafter,
the information contained in the deposition transcript will no longer be deemed
CONFIDENTIAL INFORMATION unless: (1) in a writing sent to counsel for the receiving
party before the expiration of the thirty-day period, counsel for the producing party claims in
good faith that the deposition transcript (or specified portion(s) of it) contains CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION; or (2) at the deposition,
counsel for the producing party stated on the record that certain portions or the entirety of the
1

All references to “days” mean calendar days.

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deposition transcript contains CONFIDENTIAL INFORMATION or HIGHLY
CONFIDENTIAL INFORMATION. The court reporter must mark the transcript accordingly
pursuant to the specified designation.
(g)

Written Discovery and Testimonial Documents - At least the first page of any

correspondence, any written discovery request or response (including interrogatories, document
requests, and requests for admission), or any report of an expert witness that constitutes or
contains CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION
shall be labeled or marked as either CONFIDENTIAL INFORMATION or HIGHLY
CONFIDENTIAL INFORMATION when served on the receiving party.
(h)

Use of CONFIDENTIAL INFORMATION and HIGHLY CONFIDENTIAL

INFORMATION - The CONFIDENTIAL INFORMATION and HIGHLY CONFIDENTIAL
INFORMATION of another party pursuant to this Order shall not be used for purposes other
than this Action, including but not limited to, any other legal, regulatory, research, development,
commercial or business purpose, including the pursuit of intellectual property rights, including
patent prosecution, or in connection with another legal or regulatory proceeding in the U.S. or a
foreign country, subject to any further order of this Court regarding confidentiality.
(i)

Expert Discovery - The Parties agree to exclude from discovery all draft expert reports,

expert notes, and communications between Counsel and experts relating to the Action. The
Parties and their testifying experts must otherwise comply with the disclosure requirements set
forth in Federal Rule of Civil Procedure 26(a)(2). This section shall not prevent a party from
inquiring into the basis of an Expert’s opinion, including but not limited to, inquiries into where
and how an expert located any facts or material he relied on in his report(s).
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(j)

New Parties - In the event that a new party is added, substituted, or brought into the

Action, this Protective Order shall 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 the Protective Order.
(k)

This Protective Order also applies to all copies, summaries, translations, abstracts or

similar compilations containing information, documents or things derived from a producing
party’s trade secret or other confidential research, development, or commercial information. Any
designation of CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION shall apply to any copies, summaries, translations, abstracts or similar
compilations of such CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION.
3.

DESIGNATION OF DOCUMENTS

Each page of each document produced in discovery shall, to the extent practicable, bear a prefix
identifying the producing party and a unique identifying number. Likewise, each discrete unit of
each tangible item produced in discovery shall, to the extent practicable, also bear a prefix
identifying the producing party and a unique identifying number. A producing party’s
designation under the provisions of this Protective Order shall constitute a representation that
counsel for the producing party believes in good faith that the designation is appropriate under
the standards set forth herein.
4.

MAINTENANCE OF DOCUMENTS

All CONFIDENTIAL INFORMATION and HIGHLY CONFIDENTIAL INFORMATION that
is disclosed or produced in connection with the Action (1) shall be maintained in strict
confidence by the receiving party; (2) shall be used solely in connection with the Action; and (3)
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shall not be disclosed to, or used by, any individual or entity except as permitted by this Order.
5.

ACCESS TO CONFIDENTIAL INFORMATION

(a)

Access to CONFIDENTIAL INFORMATION shall be strictly limited to the following

persons, and in the following manner, except as otherwise provided in this Order:
(1)

Any Party and any of a Party’s officers, directors, employees, trustees, partners,

agents, or in-house legal personnel (or to any officer, director, employee, or in-house legal
personnel of a parent, subsidiary or affiliate of any Party), provided that each person
receiving CONFIDENTIAL INFORMATION shall execute a form of acknowledgement
and undertaking in the form of Exhibit A;
(2)

Outside litigation counsel for any Party, and the staff of said outside counsel;

(3)

OrbiMed Advisors LLC, and its officers, directors, employees, trustees, partners,

agents, in-house legal personnel, provided that each person receiving CONFIDENTIAL
INFORMATION shall execute a form of acknowledgement and undertaking in the form
of Exhibit A;
(4)

Outside counsel for OrbiMed Advisors LLC;

(5)

Outside experts or consultants for any Party who are not employees of a receiving

party and who are retained in connection with the disputes between or among the Parties,
and their supporting personnel, only to the extent necessary to carry out duties related to
this litigation; provided that each outside expert or consultant receiving
CONFIDENTIAL INFORMATION shall execute a form of acknowledgement and
undertaking in the form of Exhibit A;

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(6)

Non-technical trial consultants, graphics or design firms, copying vendors, and

information technology consultants retained by outside counsel for any Party for the
purpose of preparing, organizing, copying and otherwise using CONFIDENTIAL
INFORMATION for purposes solely related to the Action, including their supporting
personnel;
(7)

Licensed court reporters and videographers employed in connection with this

Action solely involved for the recordation and transcription of deposition or court
proceedings or for like purposes at the request and consent of the parties;
(8)

Authors, creators, addressees, and other recipients of CONFIDENTIAL

INFORMATION, who, prior to the commencement of the Action, lawfully received or
had access to the protected information;
(9)

This Court and its authorized personnel;

(10)

Any person agreed to in writing by the producing party.

6.

ACCESS TO HIGHLY CONFIDENTIAL INFORMATION

(a)

Access to HIGHLY CONFIDENTIAL INFORMATION shall be strictly limited to the

following persons, and in the following manner, except as otherwise provided in this Order:
(1)

Outside litigation counsel for any Party, and the staff of said outside counsel;

(2)

A total of up to two (2) in-house counsel for a Party;

(3)

A total of up to two (2) employees of OrbiMed Advisors LLC and, additionally,

up to one (1) in-house counsel for OrbiMed Advisors LLC, provided that each person
receiving HIGHLY CONFIDENTIAL INFORMATION under this paragraph shall

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execute a form of acknowledgement and undertaking the form of Exhibit A. In the event
that any employee or counsel under this paragraph ceases his employment with OrbiMed
Advisors LLC, a replacement employee or counsel of OrbiMed Advisors LLC shall be
permitted access to HIGHLY CONFIDENTIAL INFORMATION;
(4)

Outside counsel for OrbiMed Advisors LLC;

(5)

Outside experts or consultants for any Party who are not employees of a receiving

party and who are retained in connection with the disputes between or among the Parties,
and their supporting personnel, only to the extent necessary to carry out duties related to
this litigation; provided that each outside expert or consultant receiving HIGHLY
CONFIDENTIAL INFORMATION shall execute a form of acknowledgement and
undertaking in the form of Exhibit A;
(6)

Non-technical trial consultants, graphics or design firms, copying vendors, and

information technology consultants retained by outside counsel for any Party for the
purpose of preparing, organizing, copying and otherwise using HIGHLY
CONFIDENTIAL INFORMATION for purposes solely related to the Action, including
their supporting personnel;
(7)

Licensed court reporters and videographers employed in connection with this

Action solely involved for the recordation and transcription of deposition or court
proceedings or for like purposes at the request and consent of the parties;
(8)

Authors, creators, addressees, and other recipients of HIGHLY CONFIDENTIAL

INFORMATION, who, prior to the commencement of the Action, lawfully received or
had access to the protected information;
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(9)

This Court and its authorized personnel; and

(10)

Any person agreed to in writing by the producing party.

7.

COURT FILINGS

(a)

All documents of any nature, including briefs, which have been designated as

CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION, and
which are filed with the Court, shall be filed asrestricted access in accordance with the
requirements of the United States District Court for the District of Colorado. A party mayshould
redact CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION
from a filing if it is practicable to do so, but any filing containing CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION must be subject to restricted
access. All filings that contain CONFIDENTIAL INFORMATION or HIGHLY
CONFIDENTIAL INFORMATION shall be accompanied by a motion to restrict public access
that complies with D.C.COLO.LCivR 7.2 and that demonstrates that the CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION at issue is entitled to
protection under the standards articulated in Nixon v. Warner Communications, Inc., 435 U.S.
589, 598-602 (1978) (applied in Western Convenience Stores, Inc. v. Suncor Energy U.S.A.,
Inc., 970 F. Supp. 2d 1162, 1192 (D. Colo. 2013)). Any person identified in Subparagraphs 5(a)
or 6(a) as permitted access to CONFIDENTIAL INFORMATION or HIGHLY
CONFIDENTIAL INFORMATION, respectively, may view filings in this Action designated as
Level 1 restricted access under D.C.COLO.LCivR 7.2. However, nothing in this Protective
Order binds the court to the grant of any filed Motion to Restrict, and in the event of a denial of
the Motion to Restrict, the subject documents may be publicly available.
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(b)

Upon the failure of the filing or lodging party to properly designate information, any

party or third party who in good faith believes that designation and filing under seal is required
may move the Court to file said information under seal within fourteen (14) days of learning of
the defective filing or lodging. Notice of such designation shall be given to all parties in the
Action. Nothing in this provision relieves a party of liability for damages caused by failure to
properly file CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION under seal. The burden of proving that such information should be sealed shall
at all times remain on the party which designated the information as CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION.
8.

USE BY PARTIES OF CONFIDENTIAL INFORMATION OR HIGHLY

CONFIDENTIAL INFORMATION
CONFIDENTIAL INFORMATION and HIGHLY CONFIDENTIAL INFORMATION may
only be used, relied upon, and referred to in connection with this Action. CONFIDENTIAL
INFORMATION and HIGHLY CONFIDENTIAL INFORMATION may be used in connection
with any testimony or other evidence presented at any trial, hearing, or deposition in connection
with this Action, consistent with and under the terms of this Order, and subject to any further
order of this Court regarding confidentiality, as follows:
(a)

a party may examine, at a deposition, hearing or trial, persons who are authorized to

receive CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION
under the terms of this Order, to the extent that such persons are permitted access to such
information under this Order, or as otherwise permitted by the Court;
(b)

a party may examine, at a deposition, hearing or trial, persons who are not authorized to

receive CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION
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under the terms of this Order, so long as such examination concerns CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION (i) for which the producing
party is the witness’ current employer, (ii) was generated during the witness’ employment at the
producing party in the event of a prior employee, or (iii) that the witness authored or previously
had access to or knowledge of, as demonstrated by the CONFIDENTIAL INFORMATION or
HIGHLY CONFIDENTIAL INFORMATION itself or by foundation testimony during a
deposition, hearing or trial, or otherwise only as permitted by the Court. This Order shall not
prevent counsel from examining a witness in a good-faith effort to determine whether he or she
authored or previously had access to or knowledge of CONFIDENTIAL INFORMATION or
HIGHLY CONFIDENTIAL INFORMATION. Further, this Order shall not prevent counsel
from impeaching, contradicting, or confronting such a witness at trial with such materials.
9.

ATTENDEES OF DEPOSITIONS

Consistent with the other provisions of this Protective Order, when a party’s or third party’s
CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION is
discussed or disclosed during a deposition, the party or third party may exclude any person not
authorized under this Order to have access to the CONFIDENTIAL INFORMATION or
HIGHLY CONFIDENTIAL INFORMATION from the deposition while the CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION is disclosed or discussed.
10.

ATTORNEY ADVICE TO CLIENT

Nothing in this Order shall bar or otherwise restrict any attorney from rendering advice to a
party-client or, in the course thereof, relying upon his or her knowledge of CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION; provided, however, that in
rendering such advice, the attorney shall not disclose any CONFIDENTIAL INFORMATION or
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HIGHLY CONFIDENTIAL INFORMATION received from a producing party to unauthorized
persons.
11.

CHALLENGES TO DESIGNATION

A receiving party’s acceptance of CONFIDENTIAL INFORMATION or HIGHLY
CONFIDENTIAL INFORMATION from a producing party shall not constitute an admission, or
create an inference, that the material is in fact confidential within the meaning of Federal Rule of
Civil Procedure 26(c)(1)(G). This Protective Order shall not foreclose any party from moving for
an order that CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION is not confidential within the meaning of Federal Rule of Civil Procedure
26(c)(1)(G), or otherwise subject to protection from disclosure by the Court. Prior to bringing
such a motion, however, the receiving party shall first request in writing that the producing party
change or remove its confidentiality designation. If the producing party refuses to change its
confidentiality designation within fourteen (14) days, the receiving party may move for an order
changing or removing the designation. On such a motion, the producing party shall have the
burden of proving that the CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION embodies, constitutes, contains, reveals, relates to, or reflects trade secrets,
processes, operations, research, technical or developmental information or apparatus, production,
marketing, sales, shipments, or other proprietary or confidential trade secret, technical, business,
financial, or personnel information within the meaning of Federal Rule of Civil Procedure
26(c)(1)(G) or is otherwise subject to protection from disclosure by the Court.
12.

CORRECTION OF INADVERTENT FAILURE TO DESIGNATE

The disclosure and/or production of any information, document or tangible item without a
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designation of CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION shall not constitute a waiver of any claim of confidentiality. Where such
undesignated disclosure or production resulted from inadvertence or mistake on the part of the
producing party, such inadvertence or mistake shall be brought to the attention of the receiving
party in writing within fourteen (14) days upon discovery of the inadvertent disclosure. Along
with the notice of such inadvertent or mistaken undesignated disclosure or production, the
producing party shall provide properly designated documents and/or tangible items, if applicable.
Upon receipt of such notice and properly designated documents and/or tangible items, if
applicable, the receiving party shall substitute properly designated copies for those previously
received and treat the information contained in or derived from said replaced documents and/or
tangible items as CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION, and the receiving party shall return to Outside Counsel for the Producing Party
or third party all such previously undesignated information with all copies, or certify destruction
thereof, within seven (7) days after receiving the substitute copies. Upon receipt of notice, the
receiving party shall honor the provisions of this Order and shall consider and treat as properly
CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION the
previously undesignated information. Under such circumstances, no receiving party shall have
any obligation or liability due to any good faith disclosure of the information which occurred
before the receipt of notice; provided, however, that any subsequent disclosure shall be in
accordance with such corrected designation.
13.

INADVERTENT DISCLOSURE BY RECEIVING PARTY

Should any CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
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INFORMATION be disclosed by a receiving party to any person not authorized to have access
to such information under this Order, the receiving party shall:
(a) use its best efforts to obtain the prompt return of any such CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION and to bind such person to
the terms of this Order; (b) within three (3) days of the discovery of such disclosure, inform such
person of the provisions of this Order and identify such person to the producing party; and (c)
request such person to sign an undertaking in the form of Exhibit A attached hereto. If executed,
the undertaking shall be served upon counsel of record for the producing party within three (3)
days of its receipt by the receiving party. The requirements set forth in this Paragraph shall not
prevent the producing party from applying to the Court for further or additional relief.
14.

NO REQUIREMENT TO WAIVE PRIVILEGE

Nothing in this Order shall be construed to require disclosure of information, documents or
tangible things that counsel contends is protected from disclosure by the attorney-client
privilege, the attorney work-product immunity or any other applicable privilege or immunity. A
producing party may produce a redacted version of information, documents or tangible things
that counsel contends is partially protected from disclosure by the attorney-client privilege, the
attorney work-product immunity or any other identified applicable privilege or immunity,
identifying where the privileged or immune material was redacted with the designation “RP”,
“Redacted - Privileged”, or a similar marking.
15.

INADVERTENT PRODUCTION

If a producing party inadvertently or mistakenly produces information, documents, or tangible
items that should have been withheld subject to a claim of attorney-client privilege, work product
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immunity, or on any other grounds, such production shall not prejudice such claim or otherwise
constitute a waiver of any claims of attorney-client privilege, work product immunity or
otherwise for such information, provided that the producing party makes a good-faith
representation in writing within fourteen (14) days upon discovery of the inadvertent disclosure
that such production was inadvertent or mistaken and takes prompt remedial action to withdraw
the disclosure. Within three (3) days of receiving a written request to do so from the producing
party, the receiving party shall return to the producing party any documents or tangible items that
the producing party represents were inadvertently or mistakenly produced.
The receiving party shall also destroy all copies or summaries of, or notes relating to, any such
inadvertently or mistakenly produced information; provided, however, that this Protective Order
shall not preclude the party returning such information from making a motion to compel
production of the returned information. The producing party shall retain copies of all returned
documents and tangible items for further disposition.
16.

DISCOVERY REQUESTS RECEIVED FROM THIRD PARTIES

By entering this Order and limiting the disclosure of information in this case, the Court does not
intend to preclude another court from finding that information may be relevant and subject to
disclosure in another case. Any party who receives a request from a third party that covers
CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION through a
subpoena or other legal process shall inform the third party of this Protective Order and notify
the counsel of record for the party who has produced the CONFIDENTIAL INFORMATION or
HIGHLY CONFIDENTIAL INFORMATION of the third party’s request, in sufficient time to
afford that party, and so that the party may have, an opportunity to appear and be heard on
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whether that information should be disclosed. The producing party shall then have the right to
challenge the subpoena or otherwise contest production of its CONFIDENTIAL
INFORMATION or HIGHLY CONFIDENTIAL INFORMATION, consistent with the
requirements of the Federal Rules of Civil Procedure. Nothing herein shall be construed as
requiring anyone covered by this Protective Order to contest a subpoena or other process, to
appeal any order requiring production of CONFIDENTIAL INFORMATION or HIGHLY
CONFIDENTIAL INFORMATION covered by this Protective Order, or to subject itself to
penalties for noncompliance with any legal process or order.
17.

CONFIDENTIAL INFORMATION RECEIVED FROM THIRD PARTIES

If, in responding to a discovery request, subpoena, other legal process or otherwise, a third party
discloses CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION
belonging to or owned by a party, the information disclosed by the third party shall be accorded
the same protection as if it were received from a producing party under this Protective Order. In
such an event, a party, in good faith believing the information disclosed to be its
CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION, may
designate such information pursuant to this Protective Order. Likewise, a third party disclosing
its own or a party’s CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION may do so under the terms of this Protective Order if the third party first agrees
in writing to the terms of this Protective Order.
18.

SEEKING RELIEF FROM, MODIFICATION OR ENFORCEMENT OF THIS

PROTECTIVE ORDER
This Protective Order shall not prevent any party from applying to the Court for further or
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additional protective orders, including an order requiring a receiving party to provide access to
CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION to any
person not entitled to such access under this Order.
19.

PROTECTED INFORMATION AFTER TERMINATION OF THIS ACTION

(a)

This Order shall survive the termination of this Action.

(b)

After final termination of this Action, including any appeals, outside counsel identified in

Subparagraphs 5(a) and 6(a) for a receiving party may retain one archival copy of deposition
transcripts, deposition exhibits, Court transcripts, Court exhibits and other submissions to the
Court, including any CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
INFORMATION contained therein.
Within sixty (60) days after final termination of this Action, including any appeals, or at a later
date by agreement of the parties, all additional CONFIDENTIAL INFORMATION or HIGHLY
CONFIDENTIAL INFORMATION of a producing party in the possession, custody or control of
a receiving party―or in the possession, custody or control of any person allowed access to such
information under Subparagraphs 5(a) or 6(a) of this Order―must either be: (1) returned to
outside counsel for the producing party; or (2) destroyed and such destruction certified in writing
to outside counsel for the producing party. Nothing in this Order requires the return or
destruction of attorney work product or attorney-client communications of any party that is
maintained and stored by outside counsel in the regular course of business.
(c)

The Court retains jurisdiction even after the termination of the Action to enforce this

Protective Order and to make such amendments, modifications, deletions and additions to this
Protective Order as the Court may deem appropriate.
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DATED at Denver, Colorado, this 25th day of March, 2015.
BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

STIPULATED AND AGREED:

/s/ Eric M. Acker
Eric M. Acker
[e-mail]
MORRISON & FOERSTER LLP
12531 High Bluff Drive
San Diego, CA 92130-2040
Telephone: [phone]
Facsimile: 858.720.5125

/s/ Jeffrey T. Thomas
Jeffrey T. Thomas
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, California 92612
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Attorney for Plaintiff The Regents of the
University of Colorado

Attorney for Defendants Allergan and
Allergan BOTOX Limited

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-CV-01562-MSK-NYW
THE REGENTS OF THE UNIVERSITY OF COLORADO,
Plaintiff,
v.
ALLERGAN, INC.
and ALLERGAN BOTOX LIMITED,
Defendants.

AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER

I,

, state that:

My present employer is

and my present work address is
.

My present title, occupation or job description is
.
I have read and understand the provisions of the Stipulated Protective Order entered in this
action and I will comply with the provisions of that Stipulated Protective Order. I consent to
be subject to the jurisdiction of this Court for enforcement of this Stipulated Protective
Order. I am aware that if I violate the provisions of this Stipulated Protective Order, this
Court may order the entry of contempt sanctions against me.

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I will hold in confidence and not disclose to anyone not qualified under the Stipulated
Protective Order CONFIDENTIAL INFORMATION and/or HIGHLY CONFIDENTIAL
INFORMATION, or any summaries, abstracts or indices of any CONFIDENTIAL
INFORMATION and/or HIGHLY CONFIDENTIAL INFORMATION, that is disclosed to me
or that I prepare.
Upon conclusion of the above-captioned litigation, including appeal, I will return to outside
counsel for the party for whom I was employed, retained or acted as witness, or destroy, all
CONFIDENTIAL INFORMATION and/or HIGHLY CONFIDENTIAL
INFORMATION―and any summaries, abstracts and indices thereof, and documents or
materials that I received or prepared relating thereto―in my possession.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Date

Signature

Name

Title

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