Brase Farms, Inc. v. Syngenta AG et al

Filing 56

PROTECTIVE ORDER. Signed by Judge David R. Herndon on 2/26/16. (Attachments: Exhibit A)(lmp)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE SYNGENTA MASS TORT ACTIONS
This Document Relates To:

Judge David R. Herndon

Poletti et al. v. Syngenta AG et al.,
No. 3:15-cv-01221-DRH

Brase Farms, Inc. et al. v. Syngenta AG et
al.,

No. 3:15-cv-01374-DRH

Wiemers Farms, Inc. et al v. Syngenta AG
et al., No. 3:15-cv-01379-DRH
PROTECTIVE ORDER
For good cause shown under Rule 26(c), the Court enters the following
Protective Order:
I.

SCOPE. This Protective Order governs the treatment of all

documents and other products of discovery, all information derived or extracted
therefrom and including, but not limited to, all copies, excerpts or summaries
thereof of any depositions, deposition exhibits, interrogatory answers, responses
to requests for admission and any other discovery authorized by the Federal
Rules of Civil Procedure, as well as any other disclosed information (collectively
“Discovery Material”) produced by any party or non-party (“Producing Party”) in
the above-captioned proceedings (the “Action”). This Protective Order governs
Confidential and Highly Confidential Discovery Materials.

II.

LIMITATION ON USE. Discovery Material may be used solely for the

prosecution, defense, appeal and/or settlement of litigation of the Action, and the
enforcement of insurance rights with respect to this Action, and may be disclosed
only under the circumstances and to the persons specifically provided for in this
or subsequent Court Orders, or with the prior written consent of the Producing
Party with respect to specifically identified Discovery Material and may not be
used for any other purpose, including but not limited to,
A.

The prosecution or defense of other actions not subject to this
Protective Order;

B.

In any proceeding before or application to any government agency;

C.

In client solicitation or attorney advertising materials;

D.

Disclosure to media or competitors of parties to the Action; or

E.

Any purpose other than the prosecution or defense of this Action.

III.

DEFINITION OF CONFIDENTIAL DISCOVERY MATERIAL. Any

Producing Party may designate as “Confidential” any Discovery Material that it
believes in good faith contains legally protectable information in accordance with
Rule 26(c) of the Federal Rules of Civil Procedure, such as:
A.

Non-public or personal information regarding the identity of and
marketing information regarding customers, growers, elevators,
vendors, contractors, suppliers, and other non-parties with whom
the parties do business (including Social Security numbers, tax
returns, medical, investment, credit and banking information);

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B.

Proprietary business information and trade secrets, including
licensing, distribution, marketing, design, redevelopment, research,
test data and manufacturing information regarding products or
technology, whether or not previously or currently marketed or
under development;

C.

Clinical studies;

D.

Competitor and competitor product or technology information,
including third party product or technology licenses;

E.

Production information, including, but not limited to trade secrets or
confidential research, development, or commercial information;

F.

Financial Information not publicly filed with any federal or state
regulatory authority;

G.

Information submitted to the EPA, FDA, USDA, or any other
governmental agency, that under applicable regulations is exempt
from disclosure under the Freedom of Information Act;

H.

Information that a party obtained from another entity and which the
party is required to keep confidential pursuant to an agreement
entered into with such entity in the regular course of business;

I.

Information contained in insurance policies that may cover this
action;

J.

Personnel compensation, evaluations or other private employment
information; or

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K.

Confidential or proprietary information about affiliates, parents,
subsidiaries or third parties with whom the Parties to this action
have had or have endeavored to have business relationships.

Information or documents that are available to the public may not be designated
as Confidential. All Discovery Material so designated shall be referred to in this
Protective Order as “Confidential Discovery Material” and shall be handled in
strict accordance with the terms of this Protective Order.
IV.
MATERIAL.

DEFINITION

OF

HIGHLY

CONFIDENTIAL

DISCOVERY

Any Producing Party may designate any Discovery Material as

“Highly Confidential” if such party in good faith believes that such Discovery
Material contains Highly Confidential information.

All Discovery Material so

designated shall be referred to in this Protective Order as “Highly Confidential
Discovery Material” and shall be handled in strict accordance with the terms of
this Protective Order. Highly Confidential Discovery Material means information
not otherwise publicly available that the Producing Party believes, in good faith,
would harm the competitive position of the producing person if the information
were to be disclosed other than as permitted herein, such as:
A.

current and future business and marketing plans;

B.

research and development activities (including past research and
development);

C.

work with third party collaborators or licensees under obligations of
confidentiality;

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D.

financial and other information relating to market share, facility
capacities, customer volume, revenues, costs, and profits;

E.

correspondence with or submissions to government entities that were
designated confidential at the time of transmittal and remains
confidential as of the date of production;

F.

tax returns;

G.

trade secrets; and

H.

any other similar information.

V.

DESIGNATION OF CONFIDENTIAL DISCOVERY MATERIAL. For

Discovery Material in the form of physical objects or documents, such Discovery
Material shall be designated, as appropriate, by stamping or affixing, in an
unobtrusive manner, the legend “CONFIDENTIAL” to all production pages of any
document

containing

Confidential

Discovery

Material

and

“HIGHLY

CONFIDENTIAL” to all pages of any document containing Highly Confidential
Discovery Material. If the aforementioned forms of designation are infeasible, the
Parties shall note the designation in the filename, metadata and/or by written
notice to counsel for the Parties. Materials such as videotapes, audio tapes, and
electronic media such as computer disks, compact discs, or DVDs, which contain
or include Confidential or Highly Confidential Discovery Material, shall be
designated by affixing the appropriate legend on the package thereof. Any such
designation shall subject the document its contents, or any portion thereof, to this
Protective Order without any further act on the part of the Producing Party.

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A.

A Producing Party may, on the record of a deposition, or within
twenty-one (21) calendar days after receipt of the transcript(s) of
such deposition, designate in good faith any portion or portions of
such transcript(s), including exhibits and videotape, as Confidential
or Highly Confidential Discovery Material under the terms of this
Protective Order. Until the above-referenced twenty-one day period
expires, the complete deposition transcript and videotape shall be
treated as Highly Confidential Discovery Material unless otherwise
specified in writing or on the record of the deposition by the
Producing Party. If deposition transcripts that contain information
or material designated as Confidential or Highly Confidential
Discovery Material are filed with the Court, the portions of such
transcripts so designated shall he filed in accordance with the
Section herein for the Procedure for Filing with the Court.

B.

In the case of documents being made available for inspection, at the
request of counsel for Producing Party, all documents and things
produced for inspection during discovery shall initially be considered
to contain Highly Confidential Discovery Material.

All such

documents and things initially shall be fully subject to the limitations
on disclosure and use of Highly Confidential Discovery Material in
this Protective Order. Copies of documents and things requested by
the Receiving Party shall be made in accordance with normal

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production procedures, and delivered to the Receiving Party; such
process shall be performed promptly and shall not await the
production or inspection of other documents or things.
C.

In the case of reports created by an expert or consultant relying on or
incorporating Confidential or Highly Confidential Discovery Material
in whole or in part, designation shall be made by the Party
responsible for its creation by notation on the report.

VI.

WHO MAY ACCESS CONFIDENTIAL DISCOVERY MATERIAL.

Confidential Discovery Material may only be disclosed, summarized,
described, or otherwise communicated or made available in whole or in part
without written consent from the Producing Party only to the following persons:
A.

The parties to this litigation, including Plaintiffs, including any
current

of former

officers, directors, employees, agents

and

representatives of the parties to the extent that such person(s) are
assisting in the prosecution or defense of the Action—provided,
however, that any document obtained from the FSA (Farms Services
Agency), USDA (United States Department of Agriculture), CCC
(Commodity Credit Corporation), or any other government entity that
relates to any Plaintiff may not be disclosed, summarized, described,
or otherwise communicated or made available in whole or in part to
any other Plaintiff;

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B.

Outside counsel who have entered an appearance in this litigation
and

their

respective

attorneys,

legal,

investigative,

technical,

administrative and other support staff;
C.

In-house counsel and any paralegal or support staff working for and
directly reporting to such counsel for any party;

D.

Third party experts, vendors or consultants retained to assist
counsel for the parties, provided that any such experts or consultants
execute

the

Acknowledgement

and

Consent

Form

(“Acknowledgement”), attached hereto as Exhibit A, prior to any
disclosure to such expert(s) or consultant(s), and that a copy of such
signed Acknowledgement is retained by counsel who retained such
an expert or consultant. Disclosure of Confidential Discovery Material
to an expert or consultant shall not constitute a designation of the
person as an expert whose opinions may be presented at trial.
Discovery of consultants and experts will be taken in accordance with
the Federal Rules of Civil Procedure;
E.

Any potential, anticipated or actual fact witness and his or her
counsel, if separate from counsel to the parties, when such
disclosure is reasonably necessary

for the purpose of trial

preparation, factual investigation, or discovery, provided that any
such persons execute the Acknowledgement prior to disclosure and a

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copy of such signed Acknowledgement is retained by counsel for the
party making disclosure;
F.

The author, addressee or recipient of the document or any other
person who, from the face of the document, reviewed or had access
to such document (not including a person who received the
document solely in the course of the litigation);

G.

Stenographers or court reporters who record testimony taken at any
time or place in the course of this Action or persons operating video
recording equipment of and at such testimony;

H.

The Court, Court personnel, any other person designated by the
Court in this Action and members of the jury;

I.

Any mediator or third party appointed by the court or jointly selected
by the parties for settlement purposes;

J.

Commercial copy service, translators, data entry and computer
support organizations, and such persons who assist in preparing
demonstrative trial exhibits, hired by and assisting outside counsel
for a party, provided such commercial organizations are made aware
of and agree to abide by the provisions of this Protective Order; and

K.

Any other person agreed to in writing by the Designating Party, which
agreement shall not be unreasonably withheld.

VII.
MATERIAL.

WHO

MAY

Highly

ACCESS

Confidential

HIGHLY

CONFIDENTIAL

Discovery

Material

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may

DISCOVERY
be

disclosed,

summarized, described, or otherwise communicated or made available in whole
or in part without written consent from the Producing Party only to the following
persons
A.

Outside counsel who have entered an appearance in this litigation,
and

their

respective

attorneys,

legal,

investigative,

technical,

administrative and other support staff;
B.

In-house counsel and any paralegal or support staff working for and
directly reporting to such counsel for any party;

C.

Third party experts or consultants retained to assist counsel for the
parties, provided that any such experts or consultants execute the
Acknowledgement prior to any disclosure to such expert(s) or
consultant(s), and that a copy of such signed Acknowledgement is
retained by counsel who retained such an expert or consultant.
Disclosure of Highly Confidential Discovery Material to an expert or
consultant shall not constitute a designation of the person as an
expert whose opinions may be presented at trial. Discovery of
consultants and experts will be taken in accordance with the Federal
Rules of Civil Procedure;

D.

The author, addressee or recipient of the document or any other
person who, from the face of the document, reviewed, had access to
such document or had access to the information contained in such

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document (not including a person who received the document solely
in the course of the litigation);
E.

Stenographers or court reporters who record testimony taken at any
time or place in the course of this Action or persons operating video
recording equipment of and at such testimony;

F.

The Court, Court personnel, any other person designated by the
Court in this Action and members of the jury;

G.

Any mediator or third party appointed by the court or jointly selected
by the parties for settlement purposes;

H.

Commercial copy service, translators, data entry and computer
support organizations, and such persons who assist in preparing
demonstrative trial exhibits, hired by and assisting outside counsel
for a party, provided such commercial organizations are made aware
of and agree to abide by the provisions of this Protective Order;

I.

Any other person agreed to in writing by the Designating Party, which
agreement shall not be unreasonably withheld; and

J.

In a deposition in which counsel for the Producing Party is
participating, any current or former employee of the Producing or
Designating Party who is expressly mentioned, discussed or referred
to in the material sought to be disclosed to that person and who had
responsibility or oversight for the subject matter referenced in the

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document, provided that such current or former employee executes
the Acknowledgment.
VIII. UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL OR HIGHLY
CONFIDENTIAL DISCOVERY MATERIAL. If a Receiving Party learns that, by
inadvertence or otherwise, it has disclosed Confidential or Highly Confidential
Discovery Material to any person or in any circumstance not authorized under
this Order, the Receiving Party must, as soon as reasonably practicable, (a) notify
in writing the Designating Party of the unauthorized disclosures, (b) make
reasonable efforts to retrieve all copies of the Confidential or Highly Confidential
Discovery Material, (c) inform the person or persons to whom unauthorized
disclosures were made of all the terms of this Order, and (d) request such person
or persons execute the Acknowledgment.
IX.

THIRD PARTY REQUESTS FOR INFORMATION. If any Receiving

Party is (a) subpoenaed in another action, (b) served with a demand in another
action to which it is a party, or (c) served with any legal process by one not a party
to this Action (including any federal state or foreign government agency), seeking
Discovery Material which was produced or designated as Confidential or Highly
Confidential by someone other than the Receiving Party, the Receiving Party upon
determining that such Discovery Materials are within the scope of the demand,
subpoena, or legal process, shall give written notice, at the earliest possible time,
of such subpoena, demand or legal process, to those who produced or designated
the material Confidential or Highly Confidential. The person or Party to whom the

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subpoena or request is directed shall not take any position concerning the
propriety of such request or subpoena or the discoverability of the information
sought that is adverse to the Designating Party should the Designating Party
oppose the request for production of such documents or materials. Other than
the obligation to comply with these requirements, this Protective Order is not
intended to affect a Party’s obligation to respond to such a subpoena or request
and nothing herein shall require any Party to ignore or act in contempt of any
court order or direction of any governmental entity.
X.

INADVERTENT FAILURE TO DESIGNATE. The inadvertent failure

to stamp a document, or a portion thereof, with the Confidential or Highly
Confidential designation in no way alters or waives the protected and confidential
nature of the document otherwise deserving of such a designation and does not
remove it from the scope of this Protective Order, provided that the Producing
Party notifies the Receiving Party, in writing, within fourteen (14) days after
becoming aware that the Confidential or Highly Confidential Discovery Material
was not properly designated. Such written notice shall identify with specificity the
information or documents the Producing Party is then designating to be
Confidential or Highly Confidential Discovery Material and shall promptly provide
a replacement copy of such material with the appropriate ‘“Confidential” of
“Highly Confidential” designation thereupon. Treatment of inadvertently produced
Confidential Material in a manner inconsistent with this Protective Order prior to
notice of such inadvertent production is not a breach of this Protective Order. If

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such material were disclosed by the Receiving Party to anyone not authorized to
receive re-designated Confidential or Highly Confidential Discovery Material, the
Receiving Party shall make commercially reasonable efforts to retrieve the
information promptly and avoid any further disclosure.
XI.

INADVERTENT PRODUCTION OF DOCUMENTS SUBJECT TO

IMMUNITY FROM DISCOVERY.

The inadvertent disclosure or production of

any information or document that is subject to an objection on the basis of
attorney-client privilege or work-product protection, including, but not limited, to
information or documents that may be considered Confidential or Highly
Confidential Discovery Material under the Protective Order, will not be deemed to
waive a party’s claim to its privileged or protected nature or estop that party or
the privilege holder from designating the information or document as attorneyclient privileged or subject to the work product doctrine at a later date. Any
Receiving Party receiving any such information or document must return it upon
request to the Producing Party. Upon receiving such a request as to specific
information or documents, the Receiving Party must return or destroy the
information or documents to the Producing Party within seven calendar days,
regardless of whether the Receiving Party agrees with the claim of privilege and/or
work-product protection. Disclosure of the information or document by the other
party prior to such later designation will not be deemed a violation of the
provisions of this Order. The provisions of this section constitute an order
pursuant to Rules 502(d) and (e) of the Federal Rules of Evidence. Upon request,

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the Producing Party shall promptly supply replacement images or placeholders in
addition to an overlay for the loadfile. Nothing in this Section shall be construed
as preventing any party from objecting to or challenging the designation of any
Discovery Material as privileged or protected.
XII.

PROCEDURE FOR FILING WITH THE COURT. In the event a party

seeks to file any document containing Confidential or Highly Confidential
Discovery Material subject to protection under this Protective Order with the
Court, that party must take appropriate action to insure that the document
receives proper protection from public disclosure including: (a) filing a redacted
document with the consent of the party who designated the document as
confidential; (b) where appropriate (e.g., in relation to discovery and evidentiary
motions), submitting the document solely for in camera review; or (c) by filing
under seal in accordance with the rules of this Court.
Nothing in this Order will be construed as a prior directive that any
document may remain under seal. The mere designation of information as
Confidential or Highly Confidential may not be sufficient to satisfy the Court’s
requirement for filing under seal. Each Party is authorized hereunder to file a
request that any materials produced in this litigation be filed under seal in
accordance with this Order.
XIII. EFFECT ON DISCOVERY. This Protective Order shall not enlarge or
affect the proper scope of discovery in this Action, nor shall this Protective Order
imply that Discovery Material designated as Confidential or Highly Confidential

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under the terms of this Protective Order is properly discoverable, relevant or
admissible in this Action or in any other litigation. Discovery Material produced in
this Action can only be used in conjunction with this Action. Nothing in this
Protective Order shall be interpreted to require disclosure of materials which a
party contends are protected from disclosure by the attorney-client privilege or
the attorney work-product doctrine.
XIV. ADVICE OF CLIENTS. Nothing in this Protective Order shall bar or
otherwise restrict any attorney from rendering advice to his or her client with
respect to this litigation and, in the course of rendering advice, referring to or
relying generally on the examination of Confidential or Highly Confidential
Discovery Material produced or exchanged; provided, however, that in rendering
such advice and in otherwise communicating with his or her client, the attorney
shall not disclose the contents of any Confidential or Highly Confidential
Discovery Material produced by another party if that disclosure would be contrary
to the terms of this Protective Order
XV.

CHALLENGING

CONFIDENTIALITY

DESIGNATIONS.

The

designation of any material or document as Confidential or Highly Confidential is
subject to challenge by any party. Before filing any motion or objection to a
confidentiality designation, the objecting party must provide written notice
identifying the challenged materials by Bates number. The parties must then meet
and confer in good faith to resolve the objection informally without judicial
intervention. A party that elects to challenge a confidentiality designation may file

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and serve a motion that identifies the challenged material and sets forth in detail
the basis for the challenge. The burden of proving the necessity of a confidentiality
designation remains with the party asserting confidentiality. Until the court rules
on the challenge, all parties must continue to treat the materials as Confidential
or Highly Confidential under the terms of this Order. In the event that the
challenged material’s designation should be changed, the Producing Party shall
reproduce copies of all materials and metadata with their designations removed
or changed in accordance with the ruling within fourteen (14) calendar days of the
ruling.
XVI. TERMINATION. Except as otherwise agreed in writing by the parties,
within sixty (60) days after the entry of final judgment in the cases in this Action
(including resolution of appeals or petitions for review), each party shall
undertake commercially reasonable efforts to return to the Producing Party or
destroy all Confidential and Highly Confidential Discovery Material supplied by a
Producing Party and all copies thereof (including, without limitation, copies
provided to testifying or consulting experts) or the party’s counsel shall certify in
writing to the Producing Party that all such materials in their possession, custody
or control have been destroyed. This Protective Order shall survive the final
termination of this Action with respect to any such Confidential or Highly
Confidential Discovery Material.
Notwithstanding these provisions, counsel shall be permitted to retain
copies of court filings, papers served in connection with this Litigation,

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transcripts (including deposition, hearing and trial transcripts), exhibits and work
product containing or reflecting Confidential or Highly Confidential Discovery
Material. Counsel for each party is not required to review and/or destroy any or
all emails, electronic documents and/or back-up tapes that may contain
Confidential or Highly Confidential Discovery Material. Instead, counsel is
required to maintain such Confidential or Highly Confidential Discovery Material
in confidence and consistent with the terms of this Protective Order. No portion of
this provision requires the disclosure of attorney work product to any other party
or counsel at any time.
XVII. PERSONS

BOUND

BY

PROTECTIVE

ORDER

AND

APPLICABILITY TO PARTIES LATER JOINED. This Order will take effect when
entered and is binding upon all counsel and their law firms, parties, and persons
subject to this Order by its terms. In the event additional parties join or are joined
in this Action, they shall have 14 days to file objections as to why his or her
individual case shall not be governed by this Order. After the expiration of the 14
days or, if an objection is filed, after the Court overrules such an objection, the
new party shall have access to Confidential or Highly Confidential Discovery
Material and shall be fully bound by this Protective Order.
XVIII.AMENDMENT. Any party may apply to this Court, upon written
notice, in accordance with the Rules of this Court, for an Order amending,
modifying or vacating all provisions of this Protective Order. Nothing in this
Protective Order shall be construed as prejudicing any Producing Party’s right to

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seek an agreement or Court Order providing additional confidentiality or other
protections to any Confidential or Highly Confidential Discovery Material
produced in this Action. Until such agreement or order is obtained, however, this
Protective Order shall constitute the entire agreement of the parties with respect
to the matters covered herein.
XIX. JURISDICTION. The provisions of this Order shall survive the
termination of the litigation and a Party may seek leave to reopen the case to
enforce the provisions of this Order. No part of the restrictions imposed by this
Order may be waived or terminated, except by written stipulation executed by
counsel of record for each Designating Party or by an Order of the Court for good
cause shown.
XX.

PROTECTIONS EXTENDED TO THIRD-PARTY’S CONFIDENTIAL

MATERIAL. The parties agree to extend the provisions of this Protective Order to
Confidential and Highly Confidential information produced in this case by third
parties, if timely requested by the third party. Any Party, in conducting discovery
from Non-Parties in connection with the Actions, shall provide any Non-Party
from which it seeks discovery with a copy of this Order so as to inform each such
Non-Party of his, her, or its rights, herein. If a Non-Party provides discovery to any
Party in connection with the Actions, the provisions of this Order shall apply to
such discovery as if such discovery were being provided by a Party. Under such
circumstances, the Non-Party shall have the same rights and obligations under the
Order as held by the Parties.

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XXI. LIMITATION ON USE OF CONFIDENTIALITY DESIGNATIONS.
This Protective Order has been agreed to by the Parties to facilitate discovery and
the production of relevant information in these actions. Neither the entry of this
Order, nor the designation of any information, document or the like as
Confidential or Highly Confidential Discovery Material, nor the failure to make
such designation, shall constitute evidence with respect to any issue in these
actions. Similarly, no Producing Party waives any right it otherwise would have to
object to disclosing or producing any information or item on any ground not
addressed in this Order.
IT IS SO ORDERED.
Signed this 26th day of February, 2016.

Digitally signed
by Judge David
R. Herndon
Date: 2016.02.26
14:56:21 -06'00'
United States District Court

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