Hamilton et al v. Bayer Healthcare Pharmaceuticals, Inc. et al
Filing
113
PROTECTIVE ORDER governing production re Mutual of Omaha Insurance Company. Signed by Judge David R. Herndon on 10/27/2018. (ceh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
3:09-MD-02100-DRH-CJP
IN RE YASMIN AND YAZ
(DROSPIRENONE) MARKETING,
SALES PRACTICES AND RELEVANT
PRODUCTS LIABILITY LITIGATION
MDL No. 2100
Judge David R. Herndon
Civil Action No.: 3:11-cv-13465-DRHPMF
WALTER HAMILTON and DIANNA
HAMILTON, Individually and as Legal
Guardians of the Person and Estate of
KAITLIN HAMILTON, an incapacitated
person,
Plaintiffs,
vs.
BAYER HEALTHCARE
PHARMACEUTICALS, INC., BAYER
PHARMA AG, BAYER CORPORATION,
BAYER HEALTHCARE LLC, BAYER
HEALTHCARE AG and BAYER AG,
Defendants.
AGREED AND STIPULATED CONFIDENTIALITY ORDER
The parties to this Agreed Confidentiality Order have agreed to the terms of
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this Order; accordingly, it is ORDERED:
1.
Scope. All materials produced or adduced in the course of discovery,
including initial disclosures, responses to discovery requests, deposition testimony
and exhibits, and information derived directly therefrom (hereinafter collectively
“documents”), which Intervenor/Counterdefendant Mutual of Omaha Insurance
Company (“Mutual of Omaha”) or Plaintiffs Walter Hamilton and Dianna Hamilton,
individually and as Legal Guardians of the Person and Estate of Kaitlin Hamilton,
an incapacitated person (“Plaintiffs”), may designate as being confidential
(pursuant to paragraph 2 below) shall be subject to this Order concerning
Confidential Information as defined below. This Order is subject to the Local
Rules of this District and the Federal Rules of Civil Procedure on matters of
procedure and calculation of time periods. This Order does not relate to
documents produced by any Bayer entity in this MDL litigation. All documents
produced by any Bayer entity in the MDL remain subject to MDL Case
Management Order No. 7 (Doc. 291).
2.
Confidential Information. As used in this Order, “Confidential
Information” means information designated as “CONFIDENTIAL-SUBJECT TO
PROTECTIVE ORDER” by the producing party that falls within one or more of the
following categories: (a) information prohibited from disclosure by statute; (b)
information that reveals trade secrets; (c) research, technical, commercial or
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financial information that the party has maintained as confidential; (d) medical
information concerning any individual; (e) personal identity information; (f)
income tax returns (including attached schedules and forms), W-2 forms and
1099 forms; or (g) personnel, employment or benefits and insurance records of a
person who is not a party to the case.
Information or documents that are
available to the public may not be designated as Confidential Information.
3.
Designation.
(a)
A party may designate a document as Confidential Information
for protection under this Order by placing or affixing the words “CONFIDENTIAL
- SUBJECT TO PROTECTIVE ORDER” on the document and on all copies in a
manner that will not interfere with the legibility of the document. As used in this
Order, “copies” includes electronic images, duplicates, extracts, summaries or
descriptions
that
contain
the
Confidential
Information.
The
marking
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall be applied prior to
or at the time of the documents are produced or disclosed. Applying the marking
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” to a document does not
mean that the document has any status or protection by statute or otherwise
except to the extent and for the purposes of this Order. Any copies that are made
of any documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER” shall also be so marked, except that indices, electronic databases or lists
of documents that do not contain substantial portions or images of the text of
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marked documents and do not otherwise disclose the substance of the
Confidential Information are not required to be marked.
(b)
The designation of a document as Confidential Information is
a certification by an attorney or a party appearing pro se that the document
contains Confidential Information as defined in this order.
4.
Depositions. Unless all parties agree on the record at the time the
deposition testimony is taken, deposition testimony taken in this case so
designated by a party as being Confidential Information (as defined in paragraph 2
above) shall be treated as Confidential Information until the expiration of the
following: No later than the thirtieth day after the transcript is delivered to any
party or the witness, and in no event later than 60 days after the testimony was
given. Within this time period, a party may serve a Notice of Designation to all
parties of record as to specific portions of the testimony that are designated
Confidential Information, and thereafter only those portions identified in the
Notice of Designation shall be protected by the terms of this Order. The failure to
serve a timely Notice of Designation shall waive any designation of testimony taken
in that deposition as Confidential Information, unless otherwise ordered by the
Court.
5.
Protection of Confidential Material.
(a)
General Protections. Confidential Information shall not be
used or disclosed by the parties, counsel for the parties or any other persons
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identified in subparagraph (b) for any purpose whatsoever other than in this
litigation, including any appeal thereof.
(b)
Limited Third-Party Disclosures.
The parties and counsel
for the parties shall not disclose or permit the disclosure of any Confidential
Information to any third person or entity except as set forth in subparagraphs (1)(9). Subject to these requirements, the following categories of persons may be
allowed to review Confidential Information:
(1)
Counsel. Counsel for the parties and employees of counsel
who have responsibility for the action;
(2)
Parties. Individual parties and employees of a party but only
to the extent counsel determines in good faith that the
employee’s assistance is reasonably necessary to the conduct
of the litigation in which the information is disclosed;
(3)
The Court and its personnel;
(4)
Court Reporters and Recorders.
recorders engaged for depositions;
(5)
Contractors. Those persons specifically engaged for the
limited purpose of making copies of documents or organizing
or processing documents, including outside vendors hired to
process electronically stored documents;
(6)
(7)
Court reporters and
Consultants and Experts. Consultants, investigators, or
experts employed by the parties or counsel for the parties to
assist in the preparation and trial of this action but only after
such persons have completed the certification contained in
Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound;
Witnesses at depositions. During their depositions, witnesses
in this action to whom disclosure is reasonably necessary.
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Witnesses shall not retain a copy of documents containing
Confidential Information, except witnesses may receive a copy
of all exhibits marked at their depositions in connection with
review of the transcripts. Pages of transcribed deposition
testimony or exhibits to depositions that are designated as
Confidential Information pursuant to the process set out in
this Order must be separately bound by the court reporter and
may not be disclosed to anyone except as permitted under this
Order.
(8)
Author or recipient. The author or recipient of the document
(not including a person who received the document in the
course of litigation);
(9)
Mediators and/or facilitators; and
(10)
Others by Consent. Other persons only by written consent of
the producing party or upon order of the Court and on such
conditions as may be agreed or ordered.
(c)
Control of Documents. Counsel for the parties shall make
reasonable efforts to prevent unauthorized or inadvertent disclosure of
Confidential Information. Counsel shall maintain the originals of the forms
signed by persons acknowledging their obligations under this Order for a
period of three years after the termination of the case.
6.
Inadvertent Failure
to Designate.
An inadvertent failure to
designate a document as Confidential Information does not, standing alone, waive
the right to so designate the document; provided, however, that a failure to serve
a timely Notice of Designation of deposition testimony as required by this Order,
even if inadvertent, waives any protection for deposition testimony. If a party
designates a document as Confidential Information after it was initially produced,
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the receiving party, on notification of the designation, must make a reasonable
effort to assure that the document is treated in accordance with the provisions of
this Order.
No party shall be found to have violated this Order for failing to
maintain the confidentiality of material during a time when that material has not
been designated Confidential Information, even where the failure to so designate
was inadvertent and where the material is subsequently designated Confidential
Information.
7.
Filing of Confidential Information. This Order does not, by itself,
authorize or permit the filing of any document under seal. Any party wishing to
file a document designated as Confidential Information in connection with a
motion, brief or other submission to the Court must comply with all applicable
local rules and this Court’s standing orders.
8.
No Greater Protection of Specific Documents. Except on privilege
grounds not addressed by this Order, no party may withhold information from
discovery on the ground that it requires protection greater than that afforded by
this Order unless the party moves for an order providing such special protection.
9.
Challenges by a Party to Designation as Confidential Information.
The designation of any material or document as Confidential Information is
subject to challenge by any party. The following procedure shall apply to any
such challenge.
(a)
Meet and Confer.
A party challenging the designation of
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Confidential Information must do so in good faith and must begin the process by
conferring directly with counsel for the designating party.
In conferring, the
challenging party must explain the basis for its belief that the confidentiality
designation was not proper and must give the designating party an opportunity to
review the designated material, to reconsider the designation, and, if no change in
designation is offered, to explain the basis for the designation. The designating
party must respond to the challenge within five (5) business days.
(b)
confidentiality
Judicial Intervention. A party that elects to challenge a
designation may file and serve a motion that identifies the
challenged material and sets forth in detail the basis for the challenge. Each such
motion must be accompanied by a competent declaration that affirms that the
movant has complied with the meet and confer requirements of this procedure.
The burden of persuasion in any such challenge proceeding shall be on the
designating party.
Until the Court rules on the challenge, all parties shall
continue to treat the materials as Confidential Information under the terms of
this Order.
10.
Action by the Court.
Applications to the Court for an order relating
to materials or documents designated Confidential Information shall be by
motion. Nothing in this Order or any action or agreement of a party under this
Order limits the Court’s power to make orders concerning the disclosure of
documents produced in discovery or at trial.
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11.
Use of Confidential Documents or Information at Trial. Nothing
in this Order shall be construed to affect the use of any document, material, or
information at any trial or hearing. A party that intends to present or that
anticipates that another party may present Confidential Information at a hearing
or trial shall bring that issue to the Court’s and parties’ attention by motion or in a
pretrial memorandum without disclosing the Confidential Information. The Court
may thereafter make such orders as are necessary to govern the use of such
documents or information at trial.
12.
Confidential Information Subpoenaed or Ordered Produced in
Other Litigation.
(a)
If a receiving party is served with a subpoena or an order
issued in other litigation that would compel disclosure of any material or
document designated in this action as Confidential Information, the receiving party
must so notify the designating party, in writing, immediately and in no event more
than seven court days after receiving the subpoena or order. Such notification
must include a copy of the subpoena or court order.
(b)
The receiving party also must immediately inform in writing
the party who caused the subpoena or order to issue in the other litigation that
some or all of the material covered by the subpoena or order is the subject of this
Order. In addition, the receiving party must deliver a copy of this Order promptly
to the party in the other action that caused the subpoena to issue.
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(c)
The purpose of imposing these duties is to alert the interested
persons to the existence of this Order and to afford the designating party in this
case an opportunity to try to protect its Confidential Information in the court
from which the subpoena or order issued. The designating party shall bear the
burden and the expense of seeking protection in that court of its Confidential
Information, and nothing in these provisions should be construed as authorizing
or encouraging a receiving party in this action to disobey a lawful directive from
another court. The obligations set forth in this paragraph remain in effect while
the party has in its possession, custody or control Confidential Information by the
other party to this case.
13.
Challenges by Members of the Public to Sealing Orders. A party or
interested member of the public has a right to challenge the sealing of particular
documents that have been filed under seal, and the party asserting confidentiality
will have the burden of demonstrating the propriety of filing under seal.
14.
Obligations on Conclusion of Litigation.
(a)
Order Continues in Force.
Unless otherwise agreed or
ordered, this Order shall remain in force after dismissal or entry of final judgment
not subject to further appeal.
(b)
Obligations at Conclusion of Litigation. Within sixty-three
days after dismissal or entry of final judgment not subject to further appeal, all
Confidential Information and documents marked “CONFIDENTIAL - SUBJECT
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TO PROTECTIVE ORDER” under this Order, including copies as defined in ¶ 3(a),
shall be returned to the producing party unless: (1) the document has been
offered into evidence or filed without restriction as to disclosure; (2) the parties
agree to destruction to the extent practicable in lieu of return; or (3) as to
documents bearing the notations, summations, or other mental impressions of the
receiving party, that party elects to destroy the documents and certifies to the
producing party that it has done so.
(c)
Retention of Work Product and one set of Filed Documents.
Notwithstanding the above requirements to return or destroy documents, counsel
may retain (1) attorney work product, including an index that refers or relates to
designated Confidential Information so long as that work product does not
duplicate verbatim substantial portions of Confidential Information, and (2) one
complete set of all documents filed with the Court including those filed under seal.
Any retained Confidential Information shall continue to be protected under this
Order. An attorney may use his or her work product in subsequent litigation,
provided that its use does not disclose or use Confidential Information.
(d)
Retention for File Maintenance. Notwithstanding the above
requirements to return or destroy documents, Defendant Principal Life Insurance
Company may retain all documents designated Confidential Information so long as
they are required to be maintained for business and regulatory purposes.
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(e)
Deletion of Documents filed under Seal from Electronic
Case Filing (ECF) System.
Filings under seal shall be deleted from the ECF
system only upon order of the Court.
15.
Order Subject to Modification. This Order shall be subject to
modification by the Court on its own initiative or on motion of a party or any
other person with standing concerning the subject matter.
16.
No Prior Judicial Determination. This Order is entered based on
the representations and agreements of the parties and for the purpose of
facilitating discovery. Nothing herein shall be construed or presented as a judicial
determination that any document or material designated Confidential Information
by counsel or the parties is entitled to protection under Rule 26(c) of the Federal
Rules of Civil Procedure or otherwise until such time as the Court may rule on a
specific document or issue.
17.
Persons Bound. This Order shall take effect when entered and shall
be binding upon all counsel of record and their law firms, the parties, and
persons made subject to this Order by its terms.
IT IS SO ORDERED.
Judge Herndon
2018.10.27
07:47:33 -05'00'
United States District Judge
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WE SO MOVE
and agree to abide by the
the terms of this Order
WE SO MOVE
and agree to abide by
terms of this Order
/s/R. Ryan Deligans (with consent)
/s/ Edna S. Kersting
Signature
Signature
R. Ryan Deligans
Edna S. Kersting
Printed Name
Printed Name
Counsel for Plaintiffs Walter
Hamilton and Dianna Hamilton,
individually and as legal guardians
of the person and estate of Kaitlin
Hamilton, an incapacitated person
Counsel for
Intervenor/Counterdefendant Mutual
of Omaha Insurance Company
Dated: October 25, 2018
Dated: October 25, 2018
WE SO MOVE
and agree to abide by the terms of this Order
/s/Katherine M. Swift (with consent)
Katherine M. Swift
Printed Name
Counsel for Defendants Bayer Healthcare Pharmaceuticals Inc.
and Bayer Pharma AG
Dated: October 25, 2018
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE YASMIN AND YAZ
(DROSPIRENONE) MARKETING,
SALES PRACTICES AND RELEVANT
PRODUCTS LIABILITY LITIGATION
3:09-MD-02100-DRH-CJP
MDL No. 2100
Judge David R. Herndon
Civil Action No.: 3:11-cv-13465-DRHPMF
WALTER HAMILTON and DIANNA
HAMILTON, Individually and as Legal
Guardians of the Person and Estate of
KAITLIN HAMILTON, an incapacitated
person,
Plaintiffs,
vs.
BAYER HEALTHCARE
PHARMACEUTICALS, INC., BAYER
PHARMA AG, BAYER CORPORATION,
BAYER HEALTHCARE LLC, BAYER
HEALTHCARE AG and BAYER AG,
Defendants.
ACKNOWLEDGEMENT AND
AGREEMENT TO BE BOUND
The
undersigned
hereby
Confidentiality Order dated _
acknowledges
that
he/she
has
read
the
in the above-captioned action and
attached hereto, understands the terms thereof, and agrees to be bound by its
terms.
The undersigned submits to the jurisdiction of the United States District
Court for the Northern District of Illinois in matters relating to the Confidentiality
Order and understands that the terms of the Confidentiality Order obligate
him/her to use materials designated as Confidential Information in accordance
with the Order solely for the purposes of the above-captioned action, and not to
disclose any such Confidential Information to any other person, firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may
result in penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date:
Signature
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