Minihan v. Ethicon, Inc. et al

Filing 31

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 07/13/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 15-CV-00695-WYD
MOLLY PATRICIA MINIHAN,
Plaintiff
v.
ETHICON, INC.; ETHICON ENDO SURGERY, INC.; ETHICON WOMEN’S HEALTH AND
UROLOGY, A DIVISION OF ETHICON, INC.; JOHNSON & JOHNSON SERVICES, INC.;
JOHNSON & JOHNSON,
Defendants.

STIPULATED PROPOSED PROTECTIVE ORDER
The undersigned counsel for Defendants and Plaintiff (collectively, the “Parties” and
each, a “Party”) in the above captioned action agree that the Parties and non-parties will be
required to produce or disclose in this proceeding certain information and documents that are
subject to confidentiality limitations on disclosure under applicable laws and regulations and
applicable privacy rights. Such documents, described in more detail below, include information
that is a trade secret or other confidential research, development, or commercial information or is
of a private or personal nature. Disclosure of such information without reasonable restriction on
the use of the information may cause harm, damage, loss, embarrassment, or disadvantage to the
Producing Party or nonparty.
Accordingly, the Parties desire entry of an order, pursuant to the Federal Rules of Civil
Procedure 26(c) D.C.COLO.LCivR 7.2, and other applicable laws and rules, that will facilitate
the prompt resolution of concerns or disputes over confidentiality, that will adequately protect
material believed in good faith to be confidential and ensure that protection is afforded only to
material so entitled and that will address any inadvertent production of documents or information
protected from disclosure by the attorney-client privilege, work-product immunity, or other
applicable privilege:
Therefore, the Parties hereby STIPULATE, subject to the Court’s approval, and the
Court, for good cause shown and after having an opportunity to discuss this Protective Order
with the Parties, hereby ORDERS that the following procedures shall be followed in this
proceeding to facilitate the orderly and efficient discovery of relevant information while
minimizing the potential for unauthorized disclosure or use of confidential or proprietary
information and documents.

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1.
Purpose. The Parties recognize that preparation for any trial of this action may
require the discovery of certain information that a Designating Party, as defined below,
reasonably and in good faith believes should be subject to confidential treatment under a
protective order. The designation of a document, material, or information (whether written,
graphic or electronic) as being subject to the terms and conditions of this Protective Order, is
intended solely to facilitate prompt discovery and the preparation for trial of this action.
2.

Scope
a. This Protective Order shall govern all hard copy and electronic materials, the
information contained therein, and all other information including all copies,
excerpts, summaries, or compilations thereof, whether revealed in a document,
deposition, other testimony, discovery response, or otherwise, that any party to
this proceeding (the “Producing Party” or “Designating Party) produces to any
other party (the “Receiving Party”) and that the Producing Party designates as
confidential under this Protective Order.
b. This Protective Order is binding upon all Parties and their counsel in this
proceeding , upon all signatories to Exhibit A, and upon (as applicable) their
respective corporate parents, subsidiaries, and affiliates, including their
successors, and their respective attorneys, principals, experts, consultants,
representatives, directors, officers, employees, and others as set forth in this
Protective Order— and upon all signatories to Exhibit “A”.
c. If additional parties are added other than parents, subsidiaries or affiliates of
current parties to this litigation, their ability to receive a document protected by
this Protective Order will be subject to their being bound, by agreement or Court
Order, to this Protective Order.
d. Third Parties who so elect may avail themselves of, and agree to be bound by, the
terms and conditions of this Protective Order and thereby become a Producing
Party for purposes of this Protective Order.
e. The entry of this Protective Order does not preclude any Party from seeking
further order of this Court, including modification of this order, or from objecting
to discovery that the Party believes to be improper.
f. Nothing herein shall be construed as an admission or concession by any Party that
designated Confidential Material, or any Document or Information derived from
Confidential Material, constitutes material, relevant, or admissible evidence in
this matter.

3.
meanings:

Definitions. In this Order, the terms set forth below shall have the following
a. “Proceeding” or “Action” means the above-entitled proceeding.

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b. “Court” means the Honorable Judge currently assigned to this proceeding or any
other judge to which this proceeding may be assigned, including Court staff
participating in such proceedings.
c. “Designating Party” means the attorney or attorneys representing the party (and
not the party itself) that designates Documents, Testimony, or Information as
Confidential Material.
d. “Document” or “Documents” shall have the meaning set out in the Federal Rules
of Civil Procedure 34(a) and, for purposes of this order, shall include
electronically stored information.
e. “Testimony” means all depositions, declarations or other pre-trial testimony taken
or used in this Proceeding.
f. “Information” means the content of Documents or Testimony, as well as any
matter derived therefrom or based thereon.
g. “Confidential Material” means any Document (electronic or hard copy),
Testimony, or Information that the attorney for the Designating Party reasonably
and in good faith believes to be entitled to confidential treatment under applicable
laws and that the attorney for the Party designates as such in accordance with the
provisions of this Order. “Confidential Materials includes, but is not limited to:
i. A plaintiff’s personal identifying information, financial information,
medical/insurance information, and, with respect to any Party, any other
information believed in good faith by the attorney for the Designating
Party to be subject to protection from disclosure by a natural person’s right
of privacy under applicable privacy laws or regulations;
ii. A defendant’s or non-party’s trade secrets (as defined in the Uniform
Trade Secrets Act); documents containing or constituting research and
development, marketing or training, confidential business, commercial, or
proprietary information, financial information or data, technical
information, manufacturing processes, product specifications, engineering
information and testing, distribution processes, or sensitive health or
medical information; or other proprietary or confidential business
information of commercial value and believed by the attorney for the
Designating Party in good faith to be subject to protection from disclosure
under applicable statutes, laws, or regulations; and
iii. All material, data, and information obtained, derived, or generated from
“Confidential Material,” to the extent the same are not publicly available
or otherwise subject to the exclusions herein.
iv. Specifically excluded from the definition of “Confidential Material” are:

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1. Any Documents, Testimony, or Information that have been, or in
the future will be, designated as “not confidential” by order of any
court;
2. Any Documents, Testimony, or Information obtained, in the past
or in the future, by any person or entity through procedures
established under the Freedom of Information Act or other public
records request. In the event of a dispute as to whether a
Document, Testimony, or Information is available through the
Freedom of Information Act or other public records request, the
issue will be resolved by Plaintiffs’ counsel making an appropriate
request for the release of such material from the appropriate
governmental agency and the granting of such request by the
agency or a court.
h.

The phrase “Confidential Material—Attorney Eyes Only” refers to Confidential
Material that the attorney for the Designating Party believes in good faith to
contain highly confidential information the disclosure of which to the Party’s
competitors would cause the Designating Party serious competitive and
commercial harm. As used in this Order, and unless otherwise specified,
“Confidential Material” shall encompass “Confidential Material—Attorney Eyes
Only.”

i. “Disclose,” “Disclosed” or “Disclosure” means to reveal, divulge, give, or make
available Documents, Testimony, or any part thereof, or any Information
contained therein.
4.

Designations of Confidential Material.
a. Designation of Documents. A Designating Party may designate Documents as
Confidential Material or Confidential Material—Attorney Eyes Only by placing a
stamp or marking on the Documents stating the following: CONFIDENTIAL,
SUBJECT TO PROTECTIVE ORDER, PRODUCED BY [PARTY NAME]
IN [NAME OF LITIGATION] or CONFIDENTIAL—ATTORNEY EYES
ONLY, SUBJECT TO PROTECTIVE ORDER, PRODUCED BY [PARTY
NAME] IN [NAME OF LITIGATION]. Such markings shall not obscure,
alter, or interfere with the legibility of the original document.
i. All copies, duplicates, extracts, summaries, or descriptions (hereinafter
referred to collectively as “copies”) of Confidential Material shall be
marked with the same confidential stamp or marking as contained on the
original, unless the original confidential stamp or marking already appears
on the copies.
b. Designation of Deposition Transcripts.

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i. During depositions, Confidential Material may be used or marked as
exhibits, but shall remain subject to this Order and may not be shown to
the witness unless such witness is a Qualified Person as describe below
ii. If deposition Testimony or exhibits contain or refer to Confidential
Material, or if they contain or refer to Documents, Testimony, or
Information to be designated as Confidential Material, the Designating
Party, by and through counsel, shall either
1. On the record at the deposition, designate the Testimony or
exhibit(s) as Confidential Material or, as applicable, identify
already-designated Confidential Material, or
2. No later than thirty (30) days after receiving a copy of the
deposition transcript, inform the deposing counsel and counsel for
other Parties that the Testimony or exhibit(s) constitute
Confidential Material; during the thirty-day period, the entire
deposition testimony, transcript, and exhibits shall be treated as
Confidential Material under this Order.
iii. When an attorney for a Party designates testimony as Confidential
Material during the deposition, counsel for that Party may exclude from
the deposition all persons who are not Qualified Persons under this Order.
iv. When portions of a deposition transcript or its exhibits are designated for
protection, the transcript or exhibit pages containing Confidential Material
shall be separately bound by the court reporter, who must affix to the top
of each page the legend “CONFIDENTIAL, SUBJECT TO
PROTECTIVE ORDER IN [NAME OF LITIGATION]” or
CONFIDENTIAL—ATTORNEY EYES ONLY, SUBJECT TO
PROTECTIVE ORDER IN [NAME OF LITIGATION].
c. Written Pleadings, Motion Papers, and Discovery Materials. An attorney for a
party may designate as Confidential Material portions of interrogatories and
interrogatory answers, responses to requests for admissions and the requests
themselves, requests for production of documents and things and responses to
such requests, pleadings, motions, affidavits, and briefs that quote, summarize, or
contain Confidential Material. To the extent feasible, such Confidential Material
shall be prepared in such a manner that it is bound separately from material not
entitled to protection.
d. Designation of Other Confidential Material. With respect to Confidential Material
produced in some form other than as described above, including, without
limitation, compact discs or DVDs or other tangible items, the attorney for the
Designating Party must affix in a prominent place on the exterior of the container
or containers in which the Information or item is stored the legend
“CONFIDENTIAL, SUBJECT TO PROTECTIVE ORDER, PRODUCED
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BY [PARTY NAME] IN [NAME OF LITIGATION]” or CONFIDENTIAL—
ATTORNEY EYES ONLY, PRODUCED BY [PARTY NAME] IN [NAME
OF LITIGATION]. If only portions of the Information or item warrant
protection, the Designating Party, to the extent practicable, shall identify the
portions that constitute “Confidential Materials.”
e. With respect to Documents or Information produced or disclosed by a non-party,
either the non-party or an attorney for a Party may designate the Documents or
Information as Confidential Material pursuant to this Order. A Party so
designating material produced by a non-Party shall notify all other Parties within
30 days of receipt of such Document or Information that the same or portions
thereof constitute or contain Confidential Material. Until the expiration of 30
days, such Document or Information produced or disclosed by any such non-party
shall be treated as Confidential Material under this Order.
5.

Required Treatment of Confidential Material.
a. Except as specifically provided in this Order, counsel shall keep all Confidential
Material disclosed or produced to them within their exclusive possession and
control, shall take all necessary and prudent measures to maintain the
confidentiality of such materials and information, and shall not permit
unauthorized dissemination of such materials to anyone.
b. Confidential Material shall not be disclosed in any way to anyone for any purpose
other than as required for the preparation of trial in this action or other related
actions as defined in Paragraph 10, below.
i. Nothing in this Order shall preclude a Party from introducing into
evidence at trial or evidentiary hearing any Confidential Material that is
admissible under applicable law. The Parties shall meet and confer
regarding the procedures for use of Confidential Material at trial or any
evidentiary hearing and shall move the Court for entry of an appropriate
order. At trial or evidentiary hearings, the Court may take such other
measures or enter separate orders, as the Court deems appropriate or upon
request by any Party, to protect the claimed Confidential Material sought
to be introduced or admitted.
c. Access to and disclosure of Confidential Material shall be limited to those persons
designated as Qualified Persons, below. Any Qualified Person who examines any
Confidential Material shall not disseminate orally, or by any other means, any
protected information other than as permitted by this Order.
d. Confidential Material shall not be used for any business, competitive or other
non-litigation purpose without the express written consent of counsel for the
Designating Party or by order of the Court.

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i. Nothing in this Protective Order shall limit any Designating Party’s use of
its own documents or shall prevent any Designating Party from disclosing
its own Confidential Material to any person for any purpose.
ii. Nothing herein shall prevent Plaintiffs from viewing or receiving and
retaining copies of their own medical, financial, or other records and from
disclosing such medical records to, and sharing them with, their
physicians, accountants, attorneys and financial advisors.
iii. Nothing herein shall prevent Defendants from viewing or retaining copies
of medical records of Plaintiffs that are in their possession or control or
from disclosing such records to other Qualified Persons.
iv. Disclosures described in the above sub-paragraphs shall not affect any
confidential designation made pursuant to the terms of this Protective
Order so long as the disclosure is made in a manner that is reasonably
calculated to maintain the confidentiality of the designated Information,
Testimony, and/or Document.
e. To avoid security risks inherent in certain current technologies and to facilitate
compliance with the terms of this Order, and unless otherwise ordered or agreed
upon in writing by the Designating Party whose Confidential Material is at issue,
all Qualified Persons with access to Confidential Material shall comply with the
following:
i. They shall use secure means to store and transmit Confidential Material.
ii. Notwithstanding the foregoing provision, Qualified Persons, as defined in
the following paragraph, shall not be prohibited from transmitting
Confidential Material to any other Qualified Person through electronic
mail, as attachments to an electronic mail in the form of separate PDF files
or zip files, through tools provided by a reputable litigation support service
as described herein, or via FTP file transfer, as long as the person
transmitting the Protected Material takes reasonable steps to protect the
confidentiality of the Confidential Material.
6.
Qualified Persons With respect to Confidential Material. Confidential
Material (as distinct from Confidential Material—Attorney Eyes Only, covered in Paragraph 7
below) may be disclosed only to the following persons (referred to as “Qualified Persons”
throughout this Order):
a. When produced by any defendant in the action: defendants’ inside and outside
counsel and insurers, as applicable, the defendants’ employees (including
partners, directors, and officers), and the Plaintiffs, and their attorneys in the
action;

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b. When produced by Plaintiffs: all defendants (including partners, directors,
officers, and employees of defendants) and their inside and outside counsel and
insurers;
c. With respect to Qualified Persons encompassed by the preceding two paragraphs
(a) and (b), such persons include the attorneys’ employees and agents (e.g.,
outside copy services, organizations involved in organizing, filing, coding,
converting, storing, or retrieving data or designing programs for handling data
connected with this action, including the performance of such duties in relation to
a computerized litigation support system, and stenographers);
d. Experts, consultants and case-specific medical professionals (“Consultants”)
whose assistance is necessary to assist counsel in the preparation of this
Proceeding, whether or not the Consultant is designated as an expert and retained
to testify, with the following qualifications:
i. Disclosure shall not be made to any consultant who, as described in
Paragraph 9, is employed by or a consultant to a competitor of the
Designating Party;
ii. Disclosure shall not be made to any consultant if counsel for the Party
retaining that consultant has actual knowledge that the consultant has been
found to have violated the terms of a protective order in any litigation or
legal proceeding; and
iii. Any expert or medical professional to whom disclosure of Confidential
Material is authorized must be informed of this Protective Order and must
sign a copy of the Non-Disclosure Agreement attached hereto as Exhibit
“A.”
e. A deponent or a witness at a deposition or pre-trial hearing, provided there is a
reasonable basis to believe that the witness will give relevant testimony regarding
the Confidential Material or that disclosure of Confidential Material is necessary
to prepare the witness for the testimony.
i. If a Party wishes to disclose Confidential Material to such a deponent or
witness before or during a deposition or pre-trial hearing, the deponent or
witness must be informed of this Protective Order and either sign a copy
of the Non-Disclosure Agreement attached hereto as Exhibit “A,” or
consent under oath on the record to abide by its provisions.
ii. The Parties agree that this provision does not preclude the Designating
Party from objecting to or moving to preclude disclosure to any deponent
or witness, or to seek amendment of this provision in the future, if it
believes it has a good faith basis for such objection or motion;

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f. A person identified in the Confidential Material as an author, source, addressee,
or recipient of the communication, or who already has a copy of the Confidential
Material;
g. Any mediators or arbitrators selected to assist in resolution of this matter, and
their personnel who are actively engaged in assisting them;
h. The Court or any Court personnel, including any court reporters; and
i. Any person mutually agreed upon among the Parties, provided that such person
has been informed of this Protective Order and has signed a copy of the NonDisclosure Agreement attached hereto as Exhibit “A.”
7.

Qualified Persons With respect to Confidential Material—Attorney Eyes

Only.
Confidential Material—Attorney Eyes Only may be disclosed only to the following
Qualified Persons:
a. Attorneys of record in this action, and their paralegals or their other employees or
agents (including litigation-support services) who require access to Confidential
Material—Attorney Eyes Only for the purpose of litigation of this action;
b. Plaintiffs, provided that their counsel believe in good faith that disclosure is
necessary to the prosecution of the action;
c. Experts who are Qualified Persons described in Paragraph 6.d and its subparagraphs above;
d. A person identified in the Confidential Material—Attorney Eyes Only as an
author, source, addressee, or recipient of the communication, or who already has a
copy of the Confidential Material;
e. Any mediators or arbitrators selected to assist in resolution of this matter, and
their personnel who are actively engaged in assisting them;
f. The Court or any Court personnel, including any court reporters; and
g. Any person mutually agreed upon among the Parties, provided that such person
has been informed of this Protective Order and has signed a copy of the NonDisclosure Agreement attached hereto as Exhibit “A.”
8.

Further Requirements With Respect to Qualified Persons.
a. Before being given access to any Confidential Material, each Qualified Person,
other than the Court, the employees and staff of the Court, counsel of record, and
the direct employees of counsel of record, and other than as set forth above with
respect to those witnesses to whom Confidential Material is disclosed or shown at
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a deposition or pre-trial hearing as set forth in Paragraph 6(e), shall be advised of
the terms of this Order, shall be given a copy of this Order, shall agree in writing
to be bound by the terms of this Order by signing a copy of the Non-Disclosure
Agreement attached hereto as Exhibit “A,” and shall consent to the exercise of
personal jurisdiction by this Court in any proceeding(s) to determine if the
signatory violated this Order. Counsel for each Party shall maintain a list of all
Qualified Persons to whom they or their client(s) have provided any Confidential
Material, which list shall be available for inspection by the Court.
b. The witness who is a Qualified Person pursuant to Paragraph 6(e) but who has not
signed a copy of the Non-Disclosure Agreement attached hereto as Exhibit “A”
may be shown Confidential Material during his or her testimony, but shall not be
given a copy of the Confidential Material to keep. Before reviewing his or her
transcribed testimony containing the Confidential Material for purposes of
completing the errata sheet, such witness shall sign a copy of the Non-Disclosure
Agreement attached hereto as Exhibit “A” and shall consent to the exercise of
personal jurisdiction by this Court in any proceeding(s) to determine if the
signatory violated this Order.
c. Any Confidential Material distributed or disclosed to a Qualified Person who is a
signatory of Exhibit “A” shall be returned to the Party’s counsel who provided it
to the Qualified Person or shall be destroyed at the completion of the Qualified
Person’s consultation or representation in this case. Upon the request of the
Designating Party or the Court, each such Qualified Person shall execute an
affidavit stating that all such Confidential Material and copies thereof have been
returned or destroyed as required.
d. The Court shall retain jurisdiction over any person or organization authorized, as
set forth above, to receive Confidential Material as necessary to enforce the
provisions of this Order.
9.
Non-Disclosure to Competitors. Notwithstanding the foregoing, without express
written consent or court order, in no event shall any disclosure of a defendant’s Confidential
Material or Confidential Material—Attorney Eyes Only be made to any known Competitor of
that defendant or to any person who, upon reasonable and good faith inquiry, could be
determined to be a current employee thereof or consultant doing research for a competitor of a
designating defendant irrespective of whether such consultant or person is retained as an expert
in this action. A “Competitor,” in the context of this Proceeding, shall mean any manufacturer of,
or manufacturer involved in the sale of, medical devices or current employee of such entity.
a. In the case of an expert or consultant, the expert or consultant is best suited to
know whether he or she is a Competitor of a defendant, or if he or she is a current
employee of or consultant doing research for a Competitor of the designating
defendant. Thus, Plaintiffs will be required by the Protective Order to make a full
inquiry of the expert or consultant and to obtain a declaration from him or her on
these topics before any information is shared with the expert or consultant.

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b. To this end, the expert or consultant shall provide written certification whether he
or she is a Competitor of a defendant, whether he or she is currently employed by
a Competitor, and whether he or she is contracted with a Competitor and doing
research for such Competitor.
c. Plaintiffs shall not disclose a defendant’s Confidential Material to any expert or
consultant who certifies that he or she is a Competitor of a defendant, is currently
employed by a Competitor, or is contracted with a Competitor and doing research
for such Competitor.
d. Plaintiffs shall maintain each respective expert’s or consultant’s certification
under this paragraph for the duration of the litigation so they may be submitted to
the Court for in camera review in the event of a dispute between the parties.
10.

Challenges to Designations.
a. The Designating Party bears the burden of establishing confidentiality.
b. Nothing in this Order shall constitute a waiver of any Party’s right to object to the
designation or non-designation of Documents, Testimony, or Information as
Confidential Material.
c. If a Party contends that any Document, Testimony, or Information has been
erroneously or improperly designated as Confidential Material, or has been
improperly redacted, the material at issue shall be treated as confidential under the
terms of this Order until
i. the Parties reach a written agreement or
ii. this Court issues an order determining that the material is not confidential
and shall not be given confidential treatment.
d. In the event that counsel for a Party receiving Confidential Material in discovery
objects to such designation, said counsel shall advise counsel for the Designating
Party, in writing, of such objections, the specific Confidential Material (identified
by Bates number, if possible) to which each objection pertains, and the specific
reasons and support for such objections (the “Designation Objections”).
e. Counsel for the Designating Party shall have 30 days from receipt of the written
Designation Objections to respond in writing as to whether the designations will
be maintained or withdrawn.
f. If Designating Party does not de-designate the challenged Confidential Material at
issue, the parties shall meet in confer in good faith, by phone or in-person, to
discuss the Designation Objections and attempt to resolve the dispute.
g. If, after meeting and conferring in good faith, the Parties are unable to resolve the
dispute regarding the Designation Objections, the Party challenging the
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designations may follow this Court’s protocol and local rules for the discovery
conference and filing of discovery motions. The Party challenging the
designations may file a motion with the Court seeking an order to de-designate
(i.e., to rule to be not confidential) the Confidential Material subject to the
Designation Objections (the “Designation Motion”).
i. Pending a resolution of the Designation Motion by the Court, the
Designating Party is presumed to have designated the Confidential
Material in good faith, and any and all existing designations challenged in
such Motion shall remain in place.
ii. The Designating Party shall have the burden of establishing the
applicability of its “confidential” designation.
11.
Use of Confidential Material in Court Proceedings. The Parties will use the
following procedure, absent further Court Order, for disclosing Confidential Material to the
Court.
a. Confidential Material is not to be filed with the Court except when required in
connection with motions or other matters pending before the Court. In the event
Confidential Information is used in any court filing or proceeding in this action,
including but not limited to its use at trial, it shall not lose its confidential status as
between the parties through such use.
b. Confidential Information and pleadings or briefs quoting or discussing
Confidential Information will not be accepted for filing “under seal” or otherwise
kept out of the public record in this action, however, except by court order issued
upon motion of the party seeking to file the documents under seal. Any motion
requesting leave to file documents under seal shall comply with the requirements
of D.C.COLO.LCivR 7.2 and demonstrate that the 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 United States v.
Hickey, 767 F.2d 705, 708 (10th Cir. 1985) and Crystal Grower’s Corp. v.
Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)).
12.

Redactions
a. To protect against unauthorized disclosure of Confidential Discovery Material,
and to comply with all applicable state and federal laws and regulations, the
Producing Party may redact from produced documents, materials and other things,
the following items, or any other item(s) protected from disclosure by statute or
decisional authority or agreed upon by the parties or ordered by the Court:
i. The names, street addresses, Social Security numbers, tax identification
numbers, and other personal identifying information of patients, health
care providers, and individuals in clinical studies or adverse event reports.
Other general identifying information, however, such as patient or health
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provider numbers, shall not be redacted unless required by state or federal
law.
ii. The Social Security numbers, tax identification numbers and other
personal identifying information of employees in any records.
b. Defendants reserve the right to redact information that is nonresponsive
(including but not limited to proprietary financial material and products unrelated
to this litigation).
c. Pursuant to 21 C.F.R. §§ 314.430(e) & (f) and 20.63(f), the names of any person
or persons reporting adverse experiences of patients and the names of any patients
that are not redacted shall be treated as Confidential, regardless of whether the
document containing such names is designated as Confidential Material.
d. Notwithstanding any of the foregoing provisions, nothing contained herein shall
be construed as a waiver of a party’s ability to challenge such redactions pursuant
to the procedures set forth in Section 11 herein. The burden as to the propriety of
any redaction remains on the Designating Party at all times.
13.

Subpoena by Other Courts or by Agencies.
a. If another court or an administrative agency requests, subpoenas, or orders the
disclosure of Confidential Material from a Party that has obtained such material
under the terms of this Order, the Party so requested, subpoenaed, or ordered shall
notify the Designating Party by electronic mail transmission, express mail, or
overnight delivery to counsel of record for the Designating Party not later than ten
(10) days prior to producing or disclosing any Confidential Material, and shall
furnish such counsel with a copy of the requests, subpoena, or order. The recipient
of the Subpoena shall not disclose any Confidential Material pursuant to the
Subpoena prior to the date specified for production on the Subpoena.
b. Upon receipt of this notice, the Designating Party may, in its sole discretion and at
its own cost, move to quash or limit the request, subpoena, or order, otherwise
oppose the disclosure of the Confidential Material, or seek to obtain confidential
treatment of such Confidential Material, to the fullest extent available under law,
by the person or entity issuing the request, subpoena, or order. The Party who
received the request, subpoena, or order shall not oppose or otherwise interfere
with the Designating Party’s effort to quash or limit the request, subpoena, or
order.

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14.

Disposition of Confidential Material.
a. Upon the request of any Party after the final conclusion of this action (including
without limitation any appeals and after the time for filing all appellate
proceedings has passed), each Party so requested shall return all Confidential
Material to counsel for the Party that produced it, shall destroy it, or otherwise
shall comply with an applicable order of the Court, subject to the exception
described herein.
b. The return or destruction of Confidential Material under this paragraph shall
include, without limitation, all copies, and duplicates thereof.
c. The Parties shall certify, within 60 days of receipt of a written request for
certification, that all Confidential Material required to be returned or destroyed
have been so returned or destroyed.
d. As an exception to the above requirements, and unless otherwise ordered by the
Court, counsel may retain: (a) copies of pleadings or other papers that have been
filed with the Court and that are Confidential Material or that reflect, reference, or
contain Confidential Material; (b) their work product; and (c) official transcripts
and exhibits thereto. The terms and provisions of this Order shall continue to
apply to any such materials retained by counsel.
e. As a further exception to the above requirements, counsel for the parties may
retain all materials produced pursuant to this agreement provided that another
morcellator litigation in which a similar protective order has been entered is
pending between the parties and/or their counsel of record.

15.
Order Survives Termination of Action. After the termination of this action by
entry of a final judgment or order of dismissal, the provisions of this Order shall continue to be
binding. This Order is, and shall be deemed to be, an enforceable agreement between the Parties,
their agents, and their attorneys. The Parties agree that the terms of this Order shall be interpreted
and enforced by this Court.
16.

No Waiver of Any Privilege Upon Inadvertent Production
a. The Parties have agreed that, in discovery in this lawsuit, they do not intend to
disclose information subject to a claim of attorney-client privilege or attorney
work product protection.
i. This Order does not effect or constitute a waiver of any Party’s right to
withhold or redact information protected from disclosure by the attorneyclient privilege, physician-patient privilege, work product doctrine, or any
other applicable privilege, protection, law, or regulation.
ii. Pursuant to Federal Rule of Evidence 502(d) and Federal Rule of Civil
Procedure 26(b)(5)(B), if a Party (the “Disclosing Party”) inadvertently
discloses such privileged or work product information (“Inadvertently
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Disclosed Information”), such disclosure shall not constitute or be deemed
a waiver or forfeiture in whole or in part of any claim of attorney-client
privilege or work product immunity that the Disclosing Party would
otherwise be entitled to assert with respect to the Inadvertently Disclosed
Information and its subject matter. As set forth below, such Inadvertently
Disclosed material shall be returned to the Producing Party or destroyed
upon request.
iii. In accordance with the requirements of applicable law or rules of
procedure, and unless otherwise agreed by the Parties, with each
production of documents the Producing Party shall provide a privilege log
within sixty (60) that identifies any information or document withheld on
the basis of privilege, except for work-product prepared by or at the
direction of counsel after the institution of this action for purposes of the
litigation and privileged communications with counsel after the institution
of this action.
b. Any party receiving materials that, on their face, appear to be covered by a
privilege, shall not copy, distribute, or otherwise use in any manner such materials
and shall provide prompt notice of the disclosure to the Producing Party to afford
the Producing Party the opportunity to request return of the materials, in
accordance with the terms of this paragraph.
c. If a Disclosing Party notifies the Receiving Party of Inadvertently Disclosed
Information, the Receiving Party shall, within ten (10) court days: (i) return or
destroy all copies of such information (including all notes or other work product
of the Receiving Party reflecting the contents of the Inadvertently Disclosed
Information) within their possession, custody, or control—including all copies in
the possession of experts, consultants, or others to whom the Inadvertently
Disclosed Information was provided—and (ii) provide a certification of counsel
that all such Inadvertently Disclosed Information has been returned or destroyed.
From the moment a Disclosing Party provides notice of inadvertent production, a
Receiving Party shall not copy, distribute, or otherwise use in any manner the
disputed documents or information, and shall instruct all persons to whom the
Receiving Party has disseminated a copy of the documents or information that the
documents or information are subject to this Order and may not be copied,
distributed, or otherwise used pending a motion and further notice from the Court.
d. The Receiving Party may move the Court for an Order compelling production of
the Inadvertently Disclosed Information. Such motion shall be filed or lodged
conditionally under seal and shall not assert as a ground for entering such an
Order the fact or circumstances of the inadvertent production. On any such
motion, the Disclosing Party shall retain the burden of establishing its privilege or
work product claims. Nothing in this paragraph shall limit the right of any Party
to petition the Court for an in camera review of the Inadvertently Disclosed
Information.

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17.

Inadvertent Production or Disclosure of Confidential Material.
a. Inadvertent or unintentional disclosure, without the required confidentiality
designation, of any Document, Testimony, or Information that the Disclosing
Party intended to designate as Confidential Material (“inadvertent production”)
shall not be deemed a waiver in whole or in part of the producing Party’s claim of
confidentiality, either as to specific documents and information disclosed or as to
the same or related subject matter.
b. In the event that a Designating Party makes such an inadvertent production, that
Party shall contact the receiving Party within 30 days of the discovery of the
inadvertent production, or as promptly as reasonably possible thereafter, and
inform the receiving Party or Parties in writing of the inadvertent production and
the specific material at issue.
c. Upon receipt of such notice, the receiving Party or Parties shall treat the material
identified in the notice as confidential until (i) the Parties agree to nonconfidential treatment of the subject material, or (ii) the Court, on motion of any
Party, issues an order addressing the appropriate treatment of the subject material.
d. Within ten court days of receiving notice of the inadvertently disclosed
Confidential Material, the receiving Party shall return or destroy all copies of such
Confidential Material and provide a certification of counsel that all such
Confidential Material has been returned or destroyed. Each receiving Party shall
notify every person or organization that received copies of or access to the
material identified in the notice that such material contains Confidential Material.
e. As promptly as reasonably possible thereafter, the Disclosing Party shall reproduce the Confidential Material with the required legend.

Dated this 13th day of July, 2015.
BY THE COURT:
__

_____________________________________
Kathleen M. Tafoya
United States Magistrate Judge

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8051955v.1

Dated: July 1, 2015
/s/ Beth A. Klein
Beth A. Klein
Carrie R. Frank
Klein & Frank, P.C.
1909 26th Street, #1C
Boulder, CO 80302
[phone]
Attorneys for Plaintiff

/s/ Tanner J. Walls
Tanner J. Walls
Tucker Ellis LLP
Metropoint I, Suite 1325
4600 S. Ulster Street
Denver, CO 80237
Telephone: [phone]
Facsimile: 720.222.5242
E-mail: [e-mail]
Attorneys for Defendants

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8051955v.1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 15-CV-00695-WYD
MOLLY PATRICIA MINIHAN,
Plaintiff
v.
ETHICON, INC.; ETHICON ENDO SURGERY, INC.; ETHICON WOMEN’S HEALTH AND
UROLOGY, A DIVISION OF ETHICON, INC.; JOHNSON & JOHNSON SERVICES, INC.;
JOHNSON & JOHNSON,
Defendants.

ENDORSEMENT OF PROTECTIVE ORDER

EXHIBIT A
ENDORSEMENT OF PROTECTIVE ORDER
I hereby attest to my understanding that information or documents designated as
Confidential Discovery Material are provided to me subject to the Protective Order dated
______________, 2015 (the “Order”), in the above-captioned litigation (“Litigation”); that I
have been given a copy of and have read the Order; and, that I agree to be bound by its terms. I
also understand that my execution of this Endorsement of Protective Order, indicating my
agreement to be bound by the Order, is a prerequisite to my review of any information or
documents designated as Confidential Discovery Material pursuant to the Order.
I further agree that I shall not disclose to others, except in accord with the Order,
any Confidential Discovery Material, in any form whatsoever, and that such Confidential
Discovery Material may be used only for the purposes authorized by the Order.
I further agree to return all copies of any Confidential Discovery Material or any
document or thing containing Confidential Discovery Material I have received to counsel who
provided them to me, or to destroy such materials, upon completion of the purpose for which
they were provided and no later than the conclusion of this Litigation.
I further agree and attest to my understanding that my obligation to honor the
confidentiality of such Confidential Discovery Material will continue even after this Litigation
concludes.
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8051955v.1

I further agree and attest to my understanding that, if I fail to abide by the terms of
the Order, I may be subject to sanctions, including contempt of court, for such failure. I agree to
be subject to the jurisdiction of the United States District Court for Colorado , for the purposes of
any proceedings relating to enforcement of the Order. I further agree to be bound by and to
comply with the terms of the Order as soon as I sign this Agreement, regardless of whether the
Order has been entered by the Court.
Date: ___________________________
By:

___________________________

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