Osborne v. Biomet, Inc. et al

Filing 22

PROTECTIVE ORDER entered by Magistrate Judge Boyd N. Boland on 12/3/14. (bsimm, )

1.

ROBERT OSBORNE,

PLAINTIFF,
V.

BIOMET, INC., AND
DOES 1-10,
DEFENDANTS.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
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Civil Action No. 14-CV-02260-BNB
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[PROPOSED] PROTECTIVE ORDER

WHEREAS, the parties in the above-captioned action may, in accordance with Rule 26(c)
of the Federal Rules of Civil Procedure (“FRCP”) and Rule 502 of the Federal Rules of Evidence
(“FRE”) seek discovery or documents, information, or other materials that are considered
proprietary or confidential by each other;
WHEREAS, the Parties wish to ensure that confidential information shall be used only for
the purposes of this action and shall not be disclosed or used in any other way;
WHEREAS, the Parties also desire, in accordance with Rule 26(f)(3)(D) of the FRCP to
establish a mechanism to avoid waiver of privilege or any other applicable protective evidentiary
doctrine as a result of the inadvertent disclosure of information subject to the attorney-client or
work-product privileges, or both.
WHEREAS, the Parties have stipulated and agreed to the terms, and jointly moved this
Court for entry of the following Protective Order, and the Court having found that, in light of the

nature of the non-public, confidential, competitively-sensitive, proprietary information that may be
sought in discovery, good cause exists for entry of the Protective Order,
IT IS ORDERED that this Stipulated Protective Order (hereinafter “Protective Order”) shall
be entered, incorporated by reference into the FRCP 16(b) scheduling order, and that the following
procedures designated to assure the protection of proprietary or confidential information shall
govern any discovery that results in the production or any other exchange of confidential documents
or information or any other exchange of such information during the course of or otherwise in
connection with the above-captioned action:
1.

Any and all documents comprising, generated from, or referencing trade secrets, processes,

operations, business methods, technology, designs, sales, any other business information that is
proprietary and/or confidential, or any materials that are deemed confidential under U.S. Food and
Drug Administration (“FDA”) regulations and Health Insurance Portability and Accountability Act
("HIPAA'') statutes and/or regulations may be designated as “Confidential Information” by the
producing party, provided such documents have not previously been disclosed by the producing
party to the general public, except to the extent that such designation is contrary to the Federal Rules
of Civil Procedure or Colorado law. Such documents or parts thereof will be designated by
stamping the word “Confidential” on each page.
2.

All information exchanged between the parties to this action shall be used solely for the

purposes of this action and for no other purpose whatsoever, except to the extent that such is
contrary or Colorado law or applicable cannons of ethics or codes of professional responsibility.
3.

For purposes of this Protective Order the term “document” as used herein includes but is not

limited to all written, recorded, or graphic material in hard copy or electronic format.

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4.

A party may object to the designation of particular Confidential Information by giving

written notice to the party designating the disputed information. The written notice shall
identify the information to which the objection is made. If the parties cannot resolve the
objection within ten (10) business days after the time the notice is received, it shall be the
obligation of the party designating the information as Confidential to file an appropriate
motion requesting that the court determine whether the disputed information should be
subject to the terms of this Protective Order. If such a motion is timely filed, the disputed
information shall be treated as Confidential under the terms of this Protective Order until the
Court rules on the motion. If the designating party fails to file such a motion within the
prescribed time, the disputed information shall lose its designation as Confidential and shall
not thereafter be treated as Confidential in accordance with this Protective Order. In
connection with a motion filed under this provision, the party designating the information as
Confidential shall bear the burden of establishing that good cause exists for the disputed
information to be treated as Confidential.
If any party believes a document not described in paragraph 1 should nevertheless be considered
confidential, it may be addressed in writing to the opposing party. If after a good-faith effort to
resolve the dispute the parties are unable to reach agreement, either party may make application to
the Court to resolve the issue.
5.

If a party believes that a document designated or sought to be designated confidential by the

producing party does not warrant such designation, the party shall first make a good-faith effort to
resolve such a dispute with opposing counsel. In the event that such a dispute cannot be resolved

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by the parties, either party may apply to the Court for a determination as to whether the designation
is appropriate.
6.

Except as otherwise provided in this Protective Order, material designated as Confidential

Information may not be examined, disclosed, or disseminated, whether orally or in writing, to any
person other than persons to whom disclosure or dissemination is necessary for the prosecution or
defense of this action, in particular:
(a)

Defendants;

(b)

Plaintiff;

(c)

The parties’ respective counsel and employees of the parties’ counsel who are acting

under the direction and control of such counsel and who are assisting such counsel in this action;
(d)

To the extent the parties’ counsel deems necessary for the prosecution or defense of

the instant matter, actual or proposed witnesses, and other persons whom the parties’ counsel deem
necessary including but not limited to independent consultants or experts retained in connection with
the instant action so long as the parties’ counsel instructs any such individual that the Confidential
Information is not to be disclosed or disseminated any further than itself and its personnel or agents,
and each such person agrees, in writing, to be bound to the terms of this Order. A sample agreement
form is attached as Exhibit 1 to this Order;
(e)

Stenographers or court reporters only to the extent necessary to prepare records of

sworn testimony in the instant action;
(f)

Magistrates, Judges, clerks or other members or employees of any court of competent

jurisdiction over proceedings in or related to the instant action or any law enforcement agency; and
(g)

Any individual who has already seen such document with the express or implied

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permission of the producing party or from some other lawful source, in accordance with this
Protective Order.
7.

The parties reserve the right to object to the designation of documents or information as

“Confidential” but must maintain the confidentiality of these documents or information pursuant to
the terms of this paragraph until otherwise ordered by the Court. Inadvertent failure to designate
Confidential Information shall not be construed as a waiver, in whole or in part, and may be
corrected by the producing party by written notification to the party in receipt of the material upon
discovery of the failure to designate.
8.

No party or other person to whom any Confidential Information is disclosed shall further

disclose any such material to any person other than those specified in Paragraph 6. Any party
making such a disclosure shall maintain a list of persons to whom disclosure was made identifying
the “Confidential” materials which were disclosed to that person. All Confidential Information
produced or exchanged in the course of this lawsuit shall be used solely for the preparation and trial
of this lawsuit and for no other purpose.
9.

Confidential Information may be disclosed in testimony at the trial of this action or offered

into evidence at the trial of this action, subject to the Federal Rules of Evidence and any further
order that the Court may enter. Further, this Protective Order shall not preclude counsel for the
parties from using during any deposition in this action any documents or information which have
been designated as Confidential Information under the terms of this Protective Order. Any request
to restrict access must comply with the requirements of D.C.COLO.CivR 7.2. If a receiving
party or attorney desires to introduce Confidential Information at trial or in the public record of the
Court in any filing or submission, the party shall give the producing party notice of the intent to

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introduce such documents to permit the producing party to meet and confer with the receiving party
regarding the filing of such materials under seal or pursuant to protective order, pursuant to FRCP
5.2, 26, District of Colorado ECF Procedure VI, or other applicable local rules. The producing party
hereby stipulates that it will agree to an extension of at least three (3) days, as calculated by FRCP
6, for a receiving party to file such documents with the Court after the filing of a related brief or
submission to facilitate the meet and confer obligations of this paragraph. The producing party
hereby stipulates that it will agree to respond to the receiving party and initiate a meet and confer
within three (3) business days of the date of the notice of intent to introduce Confidential
Information or Highly Confidential Information at trial or in the public record of the Court in any
filing or submission.
10.

Any document or other material which is marked Confidential or the contents thereof, may

be used by a party, or a party's attorney, employees of the attorney's law firm, expert witness,
consultant, or other person to whom disclosure is made, only for the purpose of this action. Nothing
contained in this Order shall prevent the use of any document or the contents thereof, at any
deposition taken in this action. If a party intends to use material that has been marked as
Confidential at the deposition of an employee or former employee of a non-producing party in this
litigation, then the party shall notify the producing party ten (10) days in advance of the deposition
that it intends to use that category of material. If the parties cannot agree on parameters for usage
of the material at the deposition, then the parties will seek the direction of the Court as to the
utilization of that category of material in the deposition.
11.

All transcripts and exhibits shall be treated as if designated Confidential for a period of thirty

(30) days after the transcript is available from the court reporter. Counsel for any party may

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designate during the deposition or during the thirty day period after the transcript is available from
the court reporter any portion of the transcript as Confidential by denominating by page and line,
and by designating any exhibits, that are to be considered Confidential pursuant to the criteria set
forth in this Protective Order. Such designation shall be communicated to all parties. Transcript
portions and exhibits designated in accordance with this paragraph shall be disclosed only in
accordance with this Protective Order. A party may challenge the Confidential or designation or
portions thereof in accordance with the provisions of Paragraph 5 above.
12.

Nothing in this Protective Order shall require disclosure of material which either party

contends is protected from disclosure by the attorney-client privilege, the work product doctrine, or
any other applicable and recognized privilege. The parties recognize that certain FDA, other
governmental agencies, and certain federal statutes require redaction of certain information prior to
production of certain information and that the parties will comply with those requirements and
redact such information as directed. Any party challenging information that has been redacted may
do so in accordance with Paragraph 5 of this Protective Order.
13.

In the event a party produces documents subject to the attorney-client privilege or work

product doctrine through inadvertence, mistake, or other error, such production shall not be a waiver
of privilege or immunity. The producing party must promptly give notice to all other parties of the
inadvertent production. Upon such notice, the receiving party promptly shall make best efforts to
collect all copies of the documents and destroy them or return them to the producing party.
14.

A party’s compliance with the terms of this Order shall not operate as an admission that any

document is or is not (a) confidential, (b) privileged, or (c) admissible in evidence at trial.

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15.

The termination of proceedings in this litigation shall not relieve any person or entity to

whom Confidential Information has been disclosed from the obligations of this Protective Order.
Following termination of proceedings in this litigation, the parties and their attorneys shall either
return to the producing party or destroy all documents and information identified in this Protective
Order within 60 days of the date upon which all appeal periods have expired, including any copies
of such material, unless the Confidential Information is required to be retained for a longer period
by law or superseding contractual agreement. The attorneys for the parties, upon written request of
the producing party, shall certify in writing that destruction in accordance with this paragraph has
occurred.
16.

If any Receiving Party receives a subpoena for Confidential Information subject to this

Order, the person subpoenaed must inform the subpoena’s issuer of this Order, provide the
subpoena’s issuer with the copy of the Order, and give prompt notice of that subpoena and a
reasonable opportunity to object to the Producing Party prior to the production of any responsive
material.
17.

Notwithstanding anything herein, counsel for the parties shall be entitled to retain all court

papers, deposition and trial transcripts, exhibits used in affidavits, at depositions and at trial, and
attorney work product. This Protective Order shall not be interpreted in a manner that would violate
any applicable canons of ethics or codes of professional responsibility. Nothing in this Protective
Order shall prohibit or interfere with the ability of counsel for any party, or experts specially
retained for this case, to represent any individual, corporation, or other entity adverse to any party
or its affiliate(s) in connection with any other matters.
18.

This Protective Order shall not apply to information which is public knowledge or publicly

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available, or to information which, after exchange or disclosure between the parties, becomes public
knowledge other than by an act or omission of any permitted recipient in contravention of the terms
of this Protective Order.
19.

Nothing in this Protective Order shall impose any restriction on the use or disclosure by a

party of its own documents.
20.

Nothing in this Protective Order shall prevent any other party from seeking amendments

broadening or restricting the rights of access to or the use of Confidential material or otherwise
modifying this Protective Order; and this Protective Order may be amended without leave of the
Court by the agreement of the undersigned attorneys for the parties in the form of a Stipulation that
shall be filed in this case.
Dated December 3, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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ROBERT OSBORNE,

PLAINTIFF,
V.
BIOMET, INC., AND
DOES 1-10,
DEFENDANTS.

Exhibit 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
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Civil Action No. 14-CV-02260-BNB
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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

I have read the Stipulated Protective Order in the above-captioned case, which is
attached hereto. I fully understand its terms and agree to be fully bound by them, and I hereby
submit to the jurisdiction of the United States District Court for the District of Colorado for
purposes of enforcement of the Stipulation and Order.

Dated: ________________

Signature:
Name:
Address:

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