H.C. v. Abbott Laboratories, Inc.

Filing 18

PROTECTIVE ORDER. Signed by Magistrate Judge Stephen C. Williams on 4/23/13. (amv)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

IN RE DEPAKOTE:
H.C., et al.,
Plaintiffs,
vs.
ABBOTT LABORATORIES INC.
Defendant.

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CIVIL NO. 13-325-SCW

PROTECTIVE ORDER
WHEREAS, the discovery phase of this case will involve the exchange of confidential
business information and information involving the privacy rights of individuals, including the
parties;
WHEREAS, the Court wishes to expedite the free flow of information between the
parties, facilitate the prompt resolution of disputes over confidentiality, protect the parties from
undue burden and expense, and ensure that protection is afforded only to material so entitled, IT
IS ORDERED as follows:
1.

This Protective Order shall govern the use and dissemination of all information,

documents or materials that are produced in the above-captioned case, all cases currently
consolidated into the above-captioned case, any future Depakote cases consolidated into the
above-captioned case, and any cases assigned from this consolidated case to a Magistrate Judge
for future proceedings1 (“the Action”) and designated as Confidential during the discovery phase

1

This category includes, but is not limited to, Cause No. 3:13-cv-00324, B.P. v. Abbott Laboratories, Inc.;
Cause No. 3:13-cv-00325, H.C. v. Abbott Laboratories, Inc.; and Cause No. 3:13-cv-00326, J.B. v. Abbott

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of this litigation.
2.

In the event that any documents, interrogatory answers, responses to requests for

admission, testimony, or other information or materials produced during the course of discovery
of the Action are designated as being "Confidential" in accordance with this Order ("Confidential
Information"), the Confidential Information produced shall be maintained in confidence and not
disclosed to any person (including representatives and employees of the producing or receiving
party) except as provided herein and shall be subject to the provisions of this Order.
3. The term “Confidential Information,” as used in this Protective Order, is defined in
accordance with and follows Seventh Circuit law. Confidential information is defined herein to
include information that is not in the public domain and contains employee information, financial
data and information, and any other information that may reasonably be characterized by a party
as intellectual property, a trade secret, or confidential and proprietary information, including
information protected from disclosure by FDA regulations including 21 C.F.R.§ 20.63 and 21
C.F.R. § 314.430; information provided to Abbott by third parties with the expectation that
Abbott would keep such information confidential or pursuant to contracts that expressly require
Abbott to maintain the confidentiality of the information or that is otherwise protected from
disclosure by statute; names and other identifying information of patients in clinical studies or
adverse event reports as well as the physicians who reported to Abbott adverse events concerning
one of their patients; confidential client lists; information that is not generally available to the
public that relates to, reflects or was or is used to help form Abbott’s research, business and legal
strategies, such as information that is not generally available to the public that relates to, reflects
or was or is used to help form Abbott’s research, business and legal strategies, such as business

Laboratories, Inc.

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or marketing plans or studies; sales data that is kept confidential; pricing and financial
information; discount information; rebate information; plaintiffs’ medical records and personal
financial information; non-public financial data that would reveal Abbott’s future strategic
commitments; information relating to job performance evaluations or disciplinary actions;
information that is not generally available to the public that relates to consumer purchasing
habits, pricing information, sales techniques, sales volumes; and information concerning
communication with government agencies.

For purposes of discovery, “trade secret” shall

include any formula, compilation, program, plan, device, design, method, technique, process or
other information used in the Producing Party’s business and for which confidentiality or
sensitivity has been reasonably maintained; and “proprietary” information shall mean any
information in which a party has a protectable interest, including information regarding a party’s
finances, processes, products, services, research and development, sales and marketing, strategies
and technologies. trade secret or other confidential research, development or commercial
information or other non-public information about the financial and business affairs of the
parties.
4.

Any party to this Action or other person or entity, including any third party, who

produces or supplies information, documents or other materials used in the Action (hereinafeter
the “Producing Party” or “Designating Party”) may designate as “Confidential” any such
information, document or material that it reasonably and in good faith believes constitutes or
contains Confidential Information. Although they may also contain “Privileged Information”
(defined below), all medical, billing, pharmacy, insurance, financial and employment records of
any Plaintiff or the relative of any Plaintiff are deemed to be "Confidential” by the Court.
5.

All materials designated "Confidential" under this Order shall be clearly stamped

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by the party or other person desiring such designation.
6.

All testimony and exhibits provided at the depositions in this Action initially shall

be considered "Confidential" and the court reporter shall mark all pages of deposition transcripts
with the designation "Confidential - Subject to Further Confidentiality Review."

In order to

maintain the "Confidential" status of such testimony (including exhibits), the Designating Party
must notify all other parties and the court reporter in writing of the specific pages and lines of the
transcript that should be treated as Confidential within thirty (30) days of receipt of the final
transcript. Only the exhibits and those portions of the transcript so designated within that thirty
(30) day period shall be deemed Confidential.

Counsel for the opposing party may have

immediate access to the deposition transcript, but prior to the page and line designations, shall
treat the entire transcript as Confidential.
7.

All Confidential Information, including any writing or communication

reproducing, paraphrasing, or otherwise disclosing such information, shall not be used for any
purpose by the receiving party except for purposes in connection with (a) the Action, or (b) any
other proceeding filed by one or more of the lawyers for Plaintiffs in the Action alleging birth
defect injuries resulting from exposure to the product(s) at issue in this Action. However,
nothing in this Protective Order shall affect Abbott's ability to review information that plaintiffs
marked "Confidential" and report such information to regulatory agencies in compliance with its
obligations under federal law.
8.

Confidential Information that has been produced in this litigation, including any

writing or communication reproducing, paraphrasing, or otherwise disclosing such information,
may be disclosed only to:
a.
The parties to this Action, including designated in-house counsel for
Abbott (and the clerical, secretarial and other staff working for in-house counsel in the legal
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department) and any employee that Abbott deems necessary to disclose such information for the
purpose of assisting in, or consulting with respect to, the preparation of this Action;
b.
The attorneys for the parties to this Action, including the partners,
associates, and stenographic, secretarial, paralegal, clerical and other employees of such counsel.
c.
The experts or consultants retained or consulted by the parties to this
Action, including the partners, associates, and stenographic, secretarial, paralegal, clerical and
other employees of such expert or consultant;
d.
Any person who prepared or originated the document, who is indicated on
its face as a recipient of a copy thereof, or who otherwise legitimately received a copy; including,
but not limited to, any treating physician or healthcare provider of any Plaintiff (collectively,
“Treating Provider”) whose medical and/or treatment records include the document;
e.
With respect to Confidential Information produced by any party to this
Action or third party with respect to Plaintiff's alleged injuries, any Treating Provider, provided
that the Confidential Information is not placed in the possession, custody, or control of a
Treating Provider or in the files maintained by or on behalf of that Provider, and such
Confidential Information must be relevant to the testimony or knowledge of that Provider.
Abbott may only show a Treating Physician medical records for the Plaintiff(s) that he or she
treated.
f.
Any person who is scheduled to be a witness at deposition, hearing or trial
in this Action where the Confidential Information is reasonably anticipated to relate to the
testimony or knowledge of such witness;
g.
The Court and related officials involved in this litigation, including judges,
magistrates, commissioner, mediators, referees, jurors, court reporters, videographers, and other
Court personnel (provided, however, that any material designated Confidential and filed with the
Court is filed in accordance with the procedures for filing under seal described below); and
h.
Any person designated by the Court and in the interest of justice, upon
such terms the Court deems proper.
9.

Prior to disclosing Confidential Information to any person listed in Paragraph

8(c), (e) or (h) above, the receiving party shall:
a.

provide such person with a copy of this Protective Order;

b.
and obtain from such person a signed statement in the form attached
hereto as Exhibit A. Such statement shall be retained by the party and need not be filed with the
Court or served upon opposing counsel unless required by the Court. Parties are required to
maintain copies of all such statements obtained by them and may be required to produce them in
camera to the Court upon request.

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10.

With regard to any Treating Provider who is shown Confidential Information by a

party pursuant to Paragraph 8(e), the opposing parties must be provided with copies and/or Bates
numbers of such Confidential Information other than those described in Paragraph 8(d). Such
Confidential Information must be disclosed at least three business days before any deposition of
that Provider. If a party first shows Confidential Information to a Treating Provider less than
three business days before that Provider’s deposition, copies of any such “Confidential
Information must be produced to the opposing party before the start of the deposition.
11.

Any person listed in Paragraph 8(a), (b), (d), or (f) who receives materials

containing Confidential Information shall:
a.

be advised of this Order;

b.
be directed to use such Confidential Information only for purposes in
connection with this Action, and in any other proceeding filed by one or more of the lawyers
for Plaintiffs alleging birth defect injuries resulting from exposure to the product(s) at issue in
this Action, and not for any other purpose; and
c.
be directed to refrain from disclosing or discussing such Confidential
Information with any person other than those already subject to the terms of this Order.
12.

The fact that information or material has been designated as Confidential is not

determinative of whether such information is, in fact, entitled to be deemed as such. All parties
shall bear in mind the Seventh Circuit’s favor for transparency of the public record, and resulting
preference for attaching to Court filings redacted rather than sealed documents. See Citizens
First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999).
13.

In the event the nonproducing party wishes to file materials designated as

“CONFIDENTIAL,” the nonproducing party shall file the materials conditionally under seal and
give the producing party contemporaneous notice. If the producing party wishes the materials to
remain filed under seal, the producing party must file a motion within fourteen (14) days and
show good cause. Similarly, should the producing party file its own materials under seal, it shall

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do so conditionally and contemporaneously file a motion to show good cause why the materials
should remain under seal. If the Court grants the motion to seal, the materials shall remain filed
under seal. If the Court denies the motion, the materials shall be unsealed.
14.

Any summary, compilation, notes, copy, electronic image or database containing

Confidential Information shall be subject to the terms of the Protective Order to the same extent
as the materials or information from which such summary, compilation, notes, copy, electronic
image or database is made or derived.
15.

Nothing contained herein shall be construed to affect in any way the admissibility

of any document, testimony, or other evidence at trial.
16.

Any party who has designated any material “Confidential” pursuant to this Order

may consent to the removal of such designation by so notifying counsel for the other party in
writing.
17.

Any party may object to a designation as follows:
a.

The party objecting shall notify the Designating Party in writing of that

objection and shall specify the designated materials, or category or sub-set of information, to
which the objection is made.
b.

The parties shall confer in good faith concerning any such objection. If

the objection is not resolved within 10 days after mailing of the notice, then the receiving party
shall file a motion to remove the designation of Confidential.

The party designating the

document as Confidential shall have the burden of evidentiary proof to establish grounds for
such treatment as to each document or sub-set of documents where the Confidential designation
has been placed at issue. Any such motion must be filed and served within 30 days after the
expiration of the 10-day period for reaching agreement referenced to previously. Any briefing on

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this issue shall be filed under seal. If a motion is filed, information subject to dispute shall, until
further order of the court, be treated consistently with its designation.
18.

Neither the taking of any action in accordance with the provisions of this

Protective Order, nor the failure to object thereto shall be construed as a waiver of any claim or
defense in this Action. Moreover, the failure to designate information in accordance with this
Order and the failure to object to a designation at a given time shall not preclude a party from
seeking to impose such designation or challenging the propriety thereof. In the event a party
discovers that it inadvertently produced materials containing Confidential Information without
marking them as such in accordance with this Protective Order, that party may provide written
notice to the receiving party that the materials should be treated as Confidential in accordance
with this Order. Upon receipt of such notice, the receiving party shall treat such materials as
Confidential, and upon receipt of materials properly marked as “Confidential,” shall return or
destroy the unmarked materials and shall reasonably ensure that others to whom the unmarked
materials were disclosed have not retained copies.

In the case of inadvertently produced

privileged and/or work product documents, Fed. R. Civ. P. 26(b)(5)(B) shall apply.
19.

This Protective Order does not govern the use of Confidential Information at trial.

The Parties and the Court (or a Magistrate Judge to whom proceedings have been referred) shall
determine the appropriate procedures to govern the use of Confidential Information at trial.
20.

The terms of this Order shall remain in full force and effect after termination of

this action, unless modified, superseded, or terminated by the written agreement of the parties or
by Order of this Court. Within 30 days after completion of this litigation, all Confidential
Information, including any writing or communication reproducing, paraphrasing, or otherwise
disclosing such information, shall be collected by counsel for the receiving party and returned to

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the Designating Materials; provided, however, that attorney work product or pleadings
containing information derived from Confidential Information may be destroyed rather than
returned to the party who supplied such Confidential Information. For purposes of this Order,
this Action shall be considered "completed" upon entry of a dismissal with prejudice of the entire
action or upon ten days following the entry of judgment that has become final and nonappealable, or from which all appeals have been exhausted.
21.

If any attorney work product or pleadings containing information derived from

Confidential Information is destroyed rather than returned to the party who supplied Confidential
Information pursuant to paragraph 19, counsel for the receiving party shall produce a certificate
confirming the destruction of all such Confidential Information (including, but not limited to, the
original versions, all copies made, and all electronic versions) to counsel for the producing party
within 60 days after completion of this Action unless counsel for the receiving party is involved
in other similar litigation that is still pending as specified in paragraph 7.
22.

All parties and other persons who receive Confidential Information shall be under

a continuing duty not to disclose such information obtained in the course of this litigation, and
this duty shall continue in full force and effect after the completion of this Litigation.
23.

No party may refuse or delay to answer or respond to any discovery request on

the basis that the response or answer would contain Confidential Information. Responsive
documents may not be withheld from production on the basis that such documents contain or
include Confidential Information.
24.

"Privileged" materials include any materials that contain information protected

from disclosure as defined by the Federal Rules of Civil Procedure and/or the Federal Rules of
Evidence.

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25.

The entry of this Order shall neither be construed as a waiver of any right to

object to the furnishing of information in response to discovery nor relieve any party of the
obligation of producing information in the course of discovery. In the event that any responsive
documents are withheld from production on the basis that such documents contain or include
Privileged materials, the party withholding production of such documents shall provide a
Privilege Log on a rolling basis, updated at regular and reasonable intervals, which shall state
with respect to each responsive document being withheld or redacted on the basis that it contains
Privileged materials the following information: (1) the date of the document; (2) the author of the
document; (3) the recipients of the document; (4) the specific privilege being invoked; and (5) a
description of the document necessary to establish the existence of the privilege invoked.
Information qualifying as attorney work product under federal law and created after August 17,
2010 are exempt from the requirements of this paragraph.
26.

Parties withholding information on the basis of a privilege are required to redact

privileged information from documents also containing non-privileged information and to
produce the redacted document. A party cannot refuse to produce an entire document on the
basis that the document contains both privileged and non-privileged information.
27.

If there is a challenge to a “Privileged” or “Confidential” designation and the

parties are unable in good faith to agree on whether the designation should remain, the party
challenging the designation may move the Court to have the producing, responding or
withholding party, as the case may be, make a witness available for a deposition limited to an
inquiry concerning the "Confidential" or "Privileged" designation of any so-designated materials.
28.

The inadvertent production of materials subject to a claim of privilege, work

product, or other statutory or Court-ordered confidentiality shall not result in a waiver of any of

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the foregoing protections for the materials, or for any other privileged or immune materials
containing the same or similar subject matter. An inadvertent production by a party in this
Action shall not be used as a basis for arguing that a claim of privilege, work product, or other
statutory or Court-ordered confidentiality has been waived in any other proceeding. If any party
inadvertently produces such materials, upon receipt of notice of such disclosure, the receiving
party shall promptly return or delete from its litigation support or other database(s) such
materials; return or destroy its other copies, if any, of such materials; destroy its notes or other
work product reflecting the contents of such materials; and confirm in writing to the producing
party that all copies of the recalled materials have been returned or destroyed in accordance with
this Order. If the receiving party seeks to challenge the disclosing party's claim that the materials
are privileged, protected, or otherwise subject to recall, it shall present the materials in dispute to
the Court under seal for a determination.
29.

This Court shall retain jurisdiction even after the termination of this Action to

enforce the terms of this Order and to make such amendments, modifications, deletions and
additions as the Court deems necessary and appropriate.
30. Parties and counsel are advised that an intentional failure to comply with this
Protective Order may be considered contempt of court and/or sanctionable conduct.
IT IS SO ORDERED.
DATED: April 23, 2013
/s/ Stephen C. Williams
Stephen C. Williams
United States Magistrate Judge

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EXHIBIT A
CERTIFICATE OF ACKNOWLEDGMENT OF PROTECTIVE ORDER
I, ______________________________________, declare that:

I have been given a copy of and have read the Protective Order entered in the action
entitled In re Depakote Cases, Lead Consolidated Case No. 12-52-GPM-PMF (the "Action"). I
agree to abide by the Protective Order and not to reveal or otherwise communicate to anyone or
utilize any of the information designated "Confidential" that is disclosed to me except in
accordance with the terms of such Order. Specifically, but not by way of limitation, I agree to
use such Confidential Information only for purposes in connection with this Action, and in any
other proceeding filed by one or more of the lawyers for Plaintiffs alleging birth defect injuries
resulting from exposure to the product(s) at issue in this Action, and not for any other purpose.
I acknowledge that any violation of the Protective Order may be punishable as contempt
of court or through monetary sanctions ordered by the Court, or both, and agree to submit to the
jurisdiction of the Court in the above-referenced case for purposes of enforcing compliance with
the Protective Order.

Dated: _______________________

______________________________
Signature
______________________________
Printed Name
______________________________
Address

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