Skaggs II et al v. AstraZeneca Pharmaceuticals LP et al

Filing 59

PROTECTIVE ORDER. Signed by Judge David R. Herndon on 5/5/2017. (ceh)

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

IRMA COLEMAN, et al.,
Plaintiffs,
-vs-

Case No. 17-cv-130-DRH

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
______________________________________________________________________
JOHN ROSENSTEEL, et al.,
Plaintiffs,
-vs-

Case No. 17-cv-131-DRH

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
______________________________________________________________________
NICHOLAS SKAGGS, II, et al.,
Plaintiffs,
-vs-

Case No. 17-cv-132-DRH

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
______________________________________________________________________
KENNETH LLOYD DRAVLAND, JR.
Plaintiff,
-vs-

Case No. 17-cv-133-DRH
1

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
PROTECTIVE ORDER
Purpose
1. The Parties recognize that discovery may be required 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 to protect the proprietary and business interests of the
Designating Party, protect personal privacy rights, and facilitate prompt discovery
and the preparation for trial of this action.
Scope
2. This Order shall govern the above-captioned matter, including any
appeal therefrom, and any other proton pump inhibitor litigation filed in this
Court by one or more of the undersigned counsel against one or more Defendants
alleging personal injury, wrongful death, or other damage arising from the
purchase and/or ingestion of a proton pump inhibitor (“PPI”) manufactured, sold,
or marketed by one of the Defendants named in this action (collectively “the
Litigation”).

2

3. 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 Litigation (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.
4. This Protective Order is binding upon all Parties and their counsel (both
outside and inside counsel) in this Litigation, upon all signatories to the
Acknowledgement of Stipulated Protective Order, attached as Exhibit A (the
“Acknowledgement”), 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, any person who obtains a Document or information produced or
disclosed in the Litigation pursuant to this Order, and others as set forth in this
Protective Order.
5. 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 to this
Protective Order, by agreement pursuant to execution of the Acknowledgement
attached as Exhibit A, or Court Order.
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6. Third Parties who are obligated to produce Confidential Discovery
Material in this Litigation and 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.
7. The entry of this Protective Order does not preclude any Party from
objecting to discovery that the Party believes to be improper.
8. Nothing herein shall be construed as an admission or concession by any
Party that designated Confidential Discovery Material, or any Document or
Information derived from Confidential Material, was appropriately designated as
Confidential Material or constitutes material, relevant, or admissible evidence in
this Litigation.
9. This Protective Order shall not be construed to protect from production
or to permit the designation of any documents or information as “Confidential”
that: (a) a Receiving Party has lawfully obtained by or from another source on a
non-confidential basis, without breach of law, regulation, court order, or privilege,
(b) is at the time of production or disclosure, or subsequently become, through no
wrongful or negligent act of the Receiving Party, readily accessible to others on a
non-confidential basis, or (c) the party has failed to make reasonable efforts to
keep confidential other than by inadvertent production or disclosure of
confidential material. In the event the Receiving Party identifies any document

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that it reasonably believes falls under this paragraph, it shall continue to treat the
document as “Confidential” and follow the procedures pursuant to this Order.
10. Definitions. As used in this Order,
a. “Confidential Discovery Material” as used herein, means information
of any type, kind or character that the Producing Party believes in
good faith constitutes, reflects, discloses, or contains information
subject to protection under Rule 26(c)(1)(G), whether it is a
Document, Discovery Material, or portions thereof, information
contained therein, or information revealed during a deposition or
other testimony, information revealed in an interrogatory response,
or information otherwise revealed.

Discovery Material containing

trade secrets or other confidential research, development, or
commercial information may be designated by the Producing Party as
“Confidential.”
b. “Confidential Personal Information” may mean Documents, material
or information produced by the Producing Party in the course of
discovery of the Litigation that are designated “Personal Information”
or “Sensitive Personal Information-Attorneys Eyes Only” as follows:
1.

Any Document produced by a party in discovery that (1) may
only be obtained from a foreign jurisdiction outside the United
States and is subject to the protection of foreign privacy and
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data protection laws of that jurisdiction, and (2) contains
information about or pertaining to a specific individual that can
be linked to that individual, may be designated as “Personal
Information” by the Producing Party.
2.

Any Document produced by a party that may only be obtained
from a foreign jurisdiction outside the United States that (1) is
subject to the protection of foreign privacy and data protection
laws of that jurisdiction, and (2) which the Producing Party
reasonably believes in good faith to contain information about or
pertaining to a specific individual that can be linked to that
individual

and

that

reveals

race,

ethnic

origin,

sexual

orientation, political opinions, religious or philosophical beliefs,
trade union or political party membership or that concerns an
individual's health, may be designated as “Sensitive Personal
Information-Attorneys Eyes Only.”
c. “Discovery Material” means all products of discovery and all
information derived therefrom, including, but not limited to (1)
deposition testimony, (2) responses to written discovery requests and
any copies, excerpts, or summaries thereof, (3) responses to
subpoenas and authorizations for release of records, and (4)
voluntary or required disclosures made by any party or person. This
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Protective Order is applicable to all forms of discovery, including but
not limited to deposition testimony, deposition exhibits, answers to
interrogatories, Documents produced in response to requests for
production, responses to requests for admission, medical records,
and any Documents recorded on computer disks or removable
storage media.
d. “Document(s)” shall be defined as they are in Federal Rule of Civil
Procedure 34, whether produced or created by a Party or another
person, and whether produced pursuant to the Federal Rules of Civil
Procedure, Local Rules, subpoena, by agreement, or otherwise. This
shall include, but not be restricted to, all interrogatory answers,
responses to requests for production or for admission(s), deposition
testimony, and deposition exhibits.
e. A “party” or “parties” means any individual or entity named as a
party to any action pending in the Litigation.
f. A “person” or “persons” means any non-party or third-party subject
to the Protective Order as described in Paragraph 4.
Designation and Treatment of Confidential Material
11. The parties agree that a Receiving Party (or any other person who
receives Confidential Discovery Material and/or Confidential Personal Information
from a Receiving Party) may use Confidential Discovery Material and/or
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Confidential Personal Information will be used only for purposes of the Litigation.
Other than described herein, Confidential Discovery Material and/or Confidential
Personal Information will not be used by a Receiving Party for any other purpose,
including other litigation, and shall not be disclosed to any person or
governmental agency or otherwise made public except in compliance with the
terms of this Order, or by determination of the Court.
12. This Order is HIPAA-compliant pursuant to 45 C.F.R. § 164.512
(e)(1)(v).

The parties agree that a Receiving Party (or any other person who

receives Confidential Discovery Material and/or Confidential Personal Information
from a Receiving Party) may use Confidential Discovery Material and/or
Confidential Personal Information only for purposes of the Litigation, including
Documents that contain Protected Health Information (PHI) and individually
identifiable health information that is protected from unauthorized disclosure by
the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”),
codified in 45 C.F.R. §§ 160, 164.
13. Any pleadings, discovery responses, statements, declarations, drafts,
copies, photographs, depictions, excerpts, and notes concerning or other
information generated from an inspection of a Document that quotes,
incorporates, reflects or otherwise includes, in whole or in part, Confidential
Discovery Material and/or Confidential Personal Information shall be treated in
the same manner as the Document bearing the designation.
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14. Any person subject to this Protective Order who receives any
Confidential Discovery Material and/or Confidential Personal Information in the
course of discovery in the Litigation shall not disclose such Confidential Discovery
Material and/or Confidential Personal Information to anyone else except as
expressly permitted by this Protective Order.
15. The Producing Party may designate as Confidential Discovery Material
and/or Confidential Personal Information any Document that it in good faith
believes constitutes confidential material subject to protection from disclosure
under Federal Rule of Civil Procedure 26 and/or applicable statutes, laws, or
regulations.
16. The Producing Party may designate a Document as Confidential
Discovery Material and/or Confidential Personal Information by stamping or
otherwise clearly marking the Document as “Confidential,” “Personal Information”
or “Sensitive Personal Information-Attorneys Eyes Only” in such a manner that
will not interfere with legibility or audibility.
17. To the extent that Confidential Discovery Material and/or Confidential
Personal Information stored or recorded in the form of electronic or magnetic
media (including, but not limited to: information, files, databases or programs
stored on any digital or analog machine-readable device, computers, Internet
sites, discs, networks, or tapes (collectively referred to as “Electronic Discovery
Material”)) is produced in such form, the Producing Party may designate the
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Electronic Discovery Material as “Confidential,” “Personal Information” or
“Sensitive Personal Information – Attorney Eyes Only” by cover letter referring
generally to the Electronic Discovery Material, or by designation in the
accompanying load file, or by stamping or marking the production media
containing the Documents with the appropriate designation(s). Whenever a party
or other person receives Electronic Discovery Material subject to this Order and
reduces the Electronic Discovery Material to hardcopy or image form, that party
shall mark the hardcopy or image form with the appropriate designation(s).
18. All depositions or portions of depositions taken in this action that
contain Confidential Discovery Material and/or Confidential Personal Information
may be designated “Confidential” and thereby obtain the protections accorded
under this Protective Order. Confidentiality designations for depositions shall be
made either on the record or by written notice to all other parties within 30 days
of receipt of the final transcript. Unless otherwise agreed, depositions shall be
treated as “Confidential” through the 30-day period following receipt of the
transcript.

Except as provided below, the deposition of any witness (or any

portion of such deposition) that encompasses Confidential Discovery Material or
Confidential Personal Information shall be taken only in the presence of persons
who are bound or have agreed to be bound by this Order and who have executed
the attached Acknowledgement of Stipulated Protective Order.

10

19. Documents produced by a third party that are not already designated as
Confidential Discovery Material by the Producing Party, shall be treated as
Confidential Discovery Material and/or Confidential Personal Information for
forty-five (45) calendar days after production. During this period any party may
designate such Documents as Confidential pursuant to the terms of this Order.
Any party designating third party information as “Confidential” shall have the
same rights as a Producing Party under this Order with respect to such
information.
20. The terms of this Order shall in no way affect the right of the Producing
Party (a) withhold Documents on the alleged grounds of immunity from discovery
such as, for example, attorney client privilege, joint defense privilege, work
product doctrine or any other privilege recognized in this jurisdiction; (b) to
exclude from production Documents that contain information relating only to
products other than PPIs; or (c) to exclude from production Documents on alleged
grounds that such Documents are beyond the scope of discovery defined in Fed.
R. Civ. P. 26(b)(1).
21. Confidential

Discovery

Material

and/or

Confidential

Personal

Information includes information that would identify patients and/or persons
associated with reporting adverse events involving human drugs including but not
limited to names, addresses, initials, Social Security numbers, tax identification
numbers, e-mail addresses, telephone numbers, and other personal identifying
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information of patients (including Plaintiff(s)), health care providers and research
subjects. See 21 C.F.R. §§ 20.63, 20.113, 45 C.F.R. §§ 160, 164. Defendants
shall not be compelled to disclose this identifying information, and a Defendant
may

redact

this

identifying

information

from

discovery

material

before

production, provided, however, that such defendant shall maintain an unredacted copy of such discovery material for any further review by the Court.
22. Information disclosing the identity of any patients and/or voluntary
reporters that are not redacted pursuant to Paragraph 21 shall be treated as
Confidential Discovery Material and/or Confidential Personal Information (as
appropriate), regardless of whether the Document containing such names is
designated

as

Confidential

Discovery

Material

or

Confidential

Personal

Information. The person(s) identified in such records shall not be contacted,
either directly or indirectly, based on information so disclosed without the
express written permission of the Producing Party, or by order of Court.
23. The terms of this Order shall in no way affect the right of any person or
party to redact information including but not limited to: (a) Documents that
contain information protected from disclosure by the attorney-client privilege,
joint defense privilege, work product doctrine or any other privilege recognized in
this jurisdiction; (b) Documents that contain information protected by the EU Data
Privacy Directive or other applicable privacy law or regulation; (c) portions of
Documents that contain proprietary information that would reveal formula or
12

specific manufacturing specifications for Defendants’ drugs; (d) drugs other than
PPIs manufactured by Defendants; (e) street addresses, Social Security numbers,
tax identification numbers, credit card numbers, dates of birth, marital status,
home telephone numbers, personal email addresses (unless that address was
used for relevant correspondence), cellular telephone numbers, and other
personal information of employees; (f) employee usernames, employee passwords,
and the names of employees’ spouses and children; and (g) names, addresses,
Social Security numbers, tax identification numbers, e-mail addresses, telephone
numbers, and other personal identifying information of any clinical investigator.
24. To facilitate and expedite discovery, the Defendants may, at their option,
produce

Documents

containing

commercially

sensitive

and

proprietary

information regarding products other than PPIs (“Other Drug Information”)
without redacting such information.
a. The Receiving Party and any other person who receives Documents
through the Receiving Party will only use Documents containing
Other Drug Information for the sole purpose of the Litigation.
b. The Receiving Party or any other person who receives Documents
through the Receiving Party will not use Documents containing Other
Drug Information, or any information derived therefrom, for any
purpose following the conclusion of the Litigation.

13

c. At any point during the pendency of the Litigation, the Producing
Party Defendant may at its option redact Other Drug Information or
clawback a Document containing Other Drug Information that has
been produced and substitute a redacted version of the Document.
Notwithstanding the foregoing, if the Producing Party Defendant
seeks to redact or clawback a document that relates to a witness who
is scheduled for deposition, it must move the Court to do so at least
21 days prior to that witness’s deposition date, so that the parties
may resolve the issue with the Court in advance of the deposition.
d. If the Producing Party Defendant desires to clawback a Document
containing Other Drug Information, they will provide notice to the
Receiving Party identifying the Document being clawed back and will
also provide a new version of the Document in which the
commercially sensitive or proprietary Other Drug Information has
been redacted. Subject to the procedures of paragraph 27 below,
upon receipt of the new redacted version of the Document, the
Receiving Party (i) will return or destroy the previous version of the
Document; (ii) will not use the previous version for any purpose, and
(iii) will ensure it retrieves any and all copies of the Document from
any person who received Documents through the Receiving Party.

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25. If at any time a party realizes that previously undesignated Documents
should be designated as Confidential Discovery Material and/or Confidential
Personal Information, the party may so designate by advising all other parties in
writing.

The designated Documents will thereafter be treated as Confidential

Discovery Material and/or Confidential Personal Information pursuant to this
Protective Order. Upon receipt of such designation in writing, each party shall
take reasonable and appropriate action to notify any and all persons to whom the
party provided the Documents of the protected status of the newly designated
Confidential Discovery Material and/or Confidential Personal Information, and to
retrieve same from any person to whom the party has provided it who is not
permitted by this Protective Order to be in possession of such information.
26. Inadvertent production or other disclosure of Documents subject to
work-product immunity, the attorney-client privilege, joint defense privilege, or
other legal privilege or protection that protects information from discovery shall
not constitute a waiver of the immunity, privilege, or other protection, provided
that the Producing Party notifies the Receiving Party in writing within 30 days
after the Producing Party becomes aware of such inadvertent production. Nothing
herein shall be construed to preclude the Producing Party from moving the Court
to seek an order permitting a “clawback” of any inadvertently produced or other
disclosure of Documents.

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27. Upon notification, the Receiving Party shall immediately return,
sequester or destroy the inadvertently-produced Document and all copies as well
as notes, summaries, and/or work product reflecting the contents of such
materials.

The Producing Party shall update its privilege log to include the

inadvertently produced Document(s), and will produce a replacement production
for the clawed back Document(s) as well as updated privilege log information for
the Document(s) within seven (7) days of the date they notified the Receiving Party
of the inadvertent Production. If only a portion of the Document is privileged, the
Producing Party shall immediately provide a new version of the Document in
which the privileged information has been redacted. No further use or disclosure
shall be made of the inadvertently-produced Document(s), and the Receiving Party
shall take all reasonable and appropriate steps to retrieve the Document(s), and
all copies, from any person who has received Documents through the Receiving
Party, until the claim, if any, is resolved.
28. The parties shall meet and confer and submit a proposal for the orderly
and early process for identifying documents on the privilege log for which a
privilege should or should not have been asserted. The parties shall have the
benefit of all limitations on waiver afforded by the Federal Rules of Civil
Procedure and Federal Rules of Evidence 501 and 502.

Notwithstanding the

foregoing, if the Producing Party Defendant seeks to redact or clawback a
document that relates to a witness who is scheduled for deposition, it must move
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the Court to do so at least 21 days prior to that witness’s deposition date, so that
the parties may resolve the issue with the Court in advance of the deposition.
Failure to assert privilege in the Litigation as to one Document shall not be
deemed to constitute a waiver of the privilege of any other Document allegedly so
protected, even involving the same subject matter. Any inadvertent disclosure of
privileged information shall not operate as a waiver in any other federal or state
proceeding, and the parties’ agreement regarding the effect of inadvertent
disclosure of privileged information shall be binding on non-parties.
Disclosure of Confidential Material
29. Materials having highly sensitive propriety value including, but not
limited

to, intellectual property materials,

manufacturing

materials, and

competitive financial materials, may be designated as “Highly Confidential –
Outside Counsel’s Eyes Only.”
30. Except for Documents designated as “Highly Confidential” or “Sensitive
Personal Information-Attorneys Eyes Only” for which disclosure is governed by
Paragraphs 30(a) and 31 and as otherwise expressly provided by this Order,
Confidential Discovery Material and/or “Confidential Personal Information”
(including Documents designated as “Personal Information”) shall not be
disclosed to any person, except as follows:
a. Counsel of record for the parties in the Litigation, including any other
attorney, paralegal, clerical, and other staff employed by such
17

counsel for work on the Litigation, or in-house Litigation counsel,
paralegal or other staff responsible for the Litigation (provided,
however, that Documents designated as “Highly Confidential –
Outside Counsel Eyes Only” may not be shared with another
defendant’s in-house counsel, in-house paralegals, or in-house
employees);
b. Where produced by a plaintiff, in addition to the persons described
in subsection (a)-(k) of this section, Defendants’ in-house counsel,
paralegals and outside counsel, including any attorneys employed by
or retained by Defendants’ outside counsel who are assisting in
connection with this Litigation, and the paralegal, clerical, and other
staff employed or retained by Defendants’ outside counsel;
c. Employees of the parties’ outside counsel or third-party vendors
involved solely in one or more aspects of reviewing, organizing, filing,
coding, converting, storing or retrieving Documents or designating
programs for handling Documents connected with the Litigation,
including

the

performance

of

such

duties

in

relation to

a

computerized litigation support system;
d. A witness at any deposition in the Litigation who is an employee of
the Producing Party or who was an employee of the Producing Party

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at the time the Document was generated or who authored or was
copied on the Document.
e. Except as outlined in paragraphs 30 and 31, any witness, who
counsel for

party in good faith believes may be called to testify at

trial or deposition in the Litigation, provided such person has first
executed the Acknowledgement of Stipulated Protective Order;
1. If a Party wishes to disclose Confidential Material to such a
deponent or witness during a deposition or pre-trial hearing,
the deponent or witness must be informed of this Protective
Order and the fact that the material is confidential. No
Confidential Material may be left with such a deponent or
witness unless he or she has signed a copy of the
Acknowledgement attached hereto as Exhibit A.
f. A plaintiff’s current or former healthcare provider who has agreed on
the record at deposition to maintain the confidentiality of any
document intended to be used at the deposition may be shown or
questioned about Confidential Discovery Material at the deposition,
provided that no copies of the Confidential Discovery Material shall
be left in the possession of the healthcare provider witness and
copies of that Confidential Discovery Material shall not be attached to
or included with any original or copy of the transcript of that
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deposition provided to the healthcare provider. Counsel present at
the deposition should make a good faith effort to obtain the
healthcare provider’s agreement on the record to maintaining
confidentiality and no counsel shall make efforts to dissuade the
healthcare provider from refusing to agree on the record to
maintaining the confidentiality of any such Documents. Regardless of
whether any deponent signs the Acknowledgement of Protective
Order attached as Exhibit A, this Order will apply to any deponent
who is shown or examined about Confidential Discovery Material and
the deponent cannot take any exhibits with them nor can he/she
reveal any information the learned from the confidential materials
shown to them.
g. Except as outlined in paragraphs 30 and 31, outside consultants,
outside experts, or other persons providing advice to counsel
(including mock juries), who have been retained for the purpose of
assisting counsel in the Litigation, provided such persons have first
executed the attached Acknowledgement of Stipulated Protective
Order;
h. Insurers and indemnitors to the extent reasonably necessary to
defend and evaluate the claims;

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i. Plaintiffs’ counsel in any action filed in this Court, alleging kidney
related injury as the result of use of the same PPI at issue in this
Litigation, provided that the attorney sign Exhibit A or is bound by a
Protective Order with similar confidentiality protections .
j. Official court reporters; and
k. The Court, Special Masters, agreed mediators, and their support
personnel.
31. Documents designated as “Sensitive Personal Information-Attorneys
Eyes Only” may only be disclosed to:
a. Outside counsel for the parties to the Litigation, which includes
undersigned Plaintiffs’ counsel, who are actively engaged in the
Litigation, and any other attorney, paralegal, clerical, and other staff
employed by such counsel for work on the Litigation, or in-house
Litigation counsel, paralegal or other staff responsible for the
Litigation (provided, however, that Documents designated as Highly
Confidential – Outside Counsel Eyes Only may not be shared with
another defendant’s in-house counsel, in-house paralegals, or inhouse employees);
b. Where produced by a plaintiff, in addition to the persons described
in subsections (a)-(f) of this section, Defendants’ in-house Litigation
team;
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c. A witness at any deposition in the Litigation who is or was 1 an
employee of the Producing Party or who authored or was copied on
the Document.
d. Except as outlined in paragraphs 30 and 31, outside consultants,
outside experts, or other persons providing advice to counsel
(including mock juries), who have been retained for the purpose of
assisting counsel in the Litigation, provided such person has first
executed the Acknowledgement of Stipulated Protective Order;
e. Official court reporters; and
f. The Court, agreed mediators, and their support personnel.
32. Prior

to

any

disclosure

of

Confidential

Discovery

Material

or

Confidential Personal Information, to any person referred to above who must
execute Exhibit A, the person shall be provided by counsel with a copy of this
Protective Order and shall sign the Acknowledgement of Stipulated Protective
Order attached as Exhibit A hereto. The Acknowledgement states that the person
agrees to be bound by the terms of the Protective Order. All Acknowledgements
will be maintained throughout the Litigation by the attorneys obtaining them. At
the conclusion of the Litigation, upon a showing of good cause and necessity, any
party may seek an order requiring production of the Acknowledgements, but

1

Before showing “Sensitive Personal Information – Attorney’s Eyes Only” material to former
employees, plaintiffs must disclose the information to the Court, in camera, together with the
name and current curriculum vitae of the proposed receiving former employee.

22

nothing in this Protective Order is intended to modify or shift any burden of proof
or privilege relating to the motion or authorize discovery of experts or their
identities.
33. Other than as described in paragraphs 30(a), (d) and 31(a), (d), absent
the agreement of the Producing Defendant or an Order of this Court, no
Confidential Discovery Material produced by a Defendant may be shown to any
current or former employee or any consultant of a different Defendant, including
without limitation, at the deposition of that employee, former employee or
consultant if that Defendant has been sued by the attorney who has endorsed this
Protective Order.
34. Except as set forth in this paragraph, Confidential Discovery Material
and Confidential Personal Information produced by the Defendants may not be
provided or disclosed to anyone who is currently an employee, officer, director of
an entity that is presently engaged in the research, development, distribution,
manufacture or sale of a PPI product, unless the party seeking to provide or
disclose such information to such persons obtains the express written consent of
counsel for the Producing Party, or obtains an order from the Court permitting
the disclosure, and notifies the Plaintiffs or other non-producing parties of their
intent to provide or disclose such information to such persons. Any party may
object to compliance with this provision in writing, stating the grounds and
serving a copy of such objection on all parties. The parties will meet and confer in
23

good faith to resolve the objection if possible in accordance with the Court’s “Meet
and Confer Requirement” set forth in the Scheduling and Discovery Order. If the
objection cannot be resolved, the dispute shall be submitted to the Court
pursuant to Local Rules 7.1 and 26.1(b)(3) for a ruling on the issue before
disclosure of information to any person who falls within the provisions of this
paragraph.
35. Nothing in this Order shall be deemed to preclude the Defendants or
Plaintiffs from disclosing to the Food and Drug Administration, or any other
regulatory authority, Confidential Discovery Material or information gleaned from
Confidential Discovery Material, as may be required by statute or regulation.
36. Any party objecting to any designation of a Document, may at any time
prior to the close of discovery in this action, serve upon counsel for interested
parties a written notice stating good faith reasons for the objection, including but
not limited to the Bates numbers of the documents included in the objection. The
parties shall make good faith efforts to resolve any dispute with opposing counsel,
including meeting and conferring with counsel for the Producing Party regarding
the designation of individual Documents pursuant to the Court’s “Meet and Confer
Requirement” set forth in the Scheduling and Discovery Order.

If agreement

cannot be reached, objecting party will submit the dispute to the Court in
accordance with Local Rules 7.1 and 26.1(b)(3), within 14 days of the parties’
meet and confer regarding the objection. The Producing Party has the burden of
24

demonstrating that the material objected to is confidential under applicable
statute, laws, or regulations. Pending resolution of the dispute by the Court, the
material designated as Confidential Discovery Material and/or Confidential
Personal Information shall remain so designated pursuant to this Protective
Order.
37. If another court or an administrative agency subpoenas or otherwise
orders production of Confidential Discovery Material and/or Confidential Personal
Information, which any party or other person has obtained under the terms of
this Order, the party or other person to whom the subpoena or other process is
directed shall immediately notify the Producing Party in writing of the following:
(1) the Confidential Discovery Material and/or Confidential Personal Information
that are requested for production in the subpoena; (2) the date on which
compliance with the subpoena is requested; (3) the location at which compliance
with the subpoena is requested; (4) the identity of the party serving the subpoena
and all available contact information for the serving party’s counsel; and (5) the
case name, jurisdiction and index, docket, complaint, charge, civil action or other
identification

number,

or

other

designation

identifying

the

litigation,

administrative proceeding or other proceeding in which the subpoena or other
process has been issued.

The subpoenaed party or person shall not produce

Confidential Discovery Material or Confidential Personal Information prior to
providing the Producing Party written notice of the request and confirming receipt
25

of same, at which time the Producing Party bears the burden (and all costs and
legal fees) of opposing the subpoena or other notice as it deems appropriate. The
party receiving the subpoena or other notice shall cooperate with the Producing
Party in any proceeding relating thereto. Nothing in this Order shall be construed
as authorizing a party to disobey a lawful subpoena issued in another action.
38. Documents that have been designated as Confidential Discovery Material
and/or Confidential Personal Information pursuant to the provisions of this Order
and that are to be filed with the Court shall be accompanied by an application to
the Court. Portions of any pleading, declaration, or other material submitted to
the Court that quotes, incorporates, reflects or otherwise includes, in whole or in
part Confidential Discovery Material and/or Confidential Personal Information
shall also be accompanied by an application to the Court. The application shall
be directed to the judge to whom the papers are directed. Pending the ruling on
the application, the papers or portions thereof subject to the sealing application
shall be lodged under seal.
39. The provisions of this Order shall not terminate at the conclusion of this
action. Except as otherwise expressly provided in this Order, within thirty (30)
days after final conclusion of the last case in the Litigation, or such other time as
the Producing Party may agree in writing, counsel shall, at their option, return or
destroy all Documents (including without limitation any and all Electronic
Discovery Material) designated as containing Confidential Discovery Material
26

and/or Confidential Personal Information, and all copies thereof. If counsel elects
to

destroy

Confidential

Discovery

Material

and/or

Confidential

Personal

Information, they shall consult with counsel for the Producing Party on the
manner of destruction and obtain such Party’s consent as to the method and
means of destruction. Each party shall certify, in writing, as to such return or
destruction of the Confidential Discovery Material and/or Confidential Personal
Information within the 30-day period. The parties may petition the Court to order
the Clerk to return any Confidential Discovery Material and/or Confidential
Personal Information filed under seal.

Outside counsel, however, shall not be

required to return or destroy any pretrial or trial records that are regularly
maintained by that counsel in the ordinary course of business; which records will
continue to be maintained as Confidential Discovery Material and/or Confidential
Personal Information in conformity with this Order, and which include: privileged
communications, work product, signed copies of the Acknowledgement of
Stipulated Protective Order, and all court-filed documents even though they
contain Confidential Discovery Material and/or Confidential Personal Information,
but such Documents shall remain subject to the terms of this Protective Order.
40. The Court shall retain jurisdiction over all persons and parties subject
to this Protective Order to the extent necessary to modify this Protective Order,
enforce its obligations, or to impose sanctions for any violation.

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41. This Protective Order shall not apply to, or restrict, Confidential
Discovery Material or Confidential Personal Information used at the time of trial
as evidence.

Protection of Confidential Discovery Material and/or Confidential

Personal Information at trial may be addressed by the Court as a separate matter
upon the motion of any party.
42. Nothing in this Protective Order shall preclude a party from using or
disclosing its own Confidential Discovery Material or Confidential Personal
Information in any manner it sees fit, without the prior consent of any other party.
43.

Any person in possession of another Party’s Confidential Discovery

Material shall exercise the same care with regard to the storage, custody, or use of
the Confidential Discovery Material as they would apply to their own material of
the same or comparable sensitivity.

Receiving Parties must take reasonable

precautions to protect Confidential Discovery Material from loss, misuse and
unauthorized access, disclosure, alteration and destruction.
44. Each person who has access to Confidential Discovery Material and/or
Confidential Personal Information shall take reasonable precautions to prevent
the unauthorized or inadvertent disclosure of the material.
45. A party who learns of an unauthorized disclosure of Confidential
Discovery Material and/or Confidential Personal Information by it or by any
person to whom the party has disclosed such information pursuant to this
Protective Order shall within 14 days (a) issue written notice of the unauthorized
28

disclosure to the Producing Party; (b) use best efforts to retrieve all copies of the
Confidential Discovery Material and/or Confidential Personal Information subject
to unauthorized disclosure; (c) inform all persons to whom unauthorized
disclosure was made of the terms of this Protective Order; and (d) use best efforts
to secure an Acknowledgement of Stipulated Protective Order from all persons to
whom the unauthorized disclosure was made.
46. This Protective Order may be modified by the Court upon motion filed
pursuant to

Local Rule 7.1 or by stipulation of the parties approved by further

order of the Court.

Digitally signed by
Judge David R.
Herndon
Date: 2017.05.05
14:18:41 -05'00'

IT IS SO ORDERED.
DATED: May 5, 2017

UNITED STATES DISTRICT JUDGE

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EXHIBIT A
ACKNOWLEDGEMENT OF STIPULATED PROTECTIVE ORDER
I, __________________________, acknowledge that I have received and
understand the Stipulated Protective Order (“Protective Order”) in this action
governing the non-disclosure of those portions of discovery material that have
been designated as Confidential (“Confidential Discovery Material”), and/or as
Personal Information or Sensitive Personal Information (“Confidential Personal
Information”) or contain individually identifiable health information. I agree that I
will not disclose such Confidential Discovery Material or Confidential Personal
Information to anyone other than for purposes of the Litigation and that at the
conclusion of the Litigation I will return all such Confidential Discovery Material
and Confidential Personal Information to the party or attorney from whom I
received it.

By acknowledging these obligations under the Protective Order, I

understand that I am submitting myself to the jurisdiction of the State of Illinois
for the purpose of any issue or dispute arising hereunder and that my willful
violation of any term of the Protective Order could subject me to punishment for
contempt of Court.

Dated this _____ day of __________________, _____.

________________________________________
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