Didier v. Abbott Laboratories et al

Filing 18

STIPULATED PROTECTIVE ORDER. The court finds good cause to enter the protective order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 4/26/2013. (ah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEREMY DIDIER,
Plaintiff,
vs.
ABBOTT LABORATORIES, ABBOTT
LABORATORIES, INC., ABBOTT
PRODUCTS, INC. and ABBVIE, INC.
Defendants.

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STIPULATED PROTECTIVE ORDER
Defendants Abbott Laboratories, Abbott Laboratories Inc., Abbott Products,
Inc. and AbbVie Inc. ("Defendants") and Plaintiff Jeremy Didier ("Plaintiff") (collectively,
"the parties") agree that discovery in this matter should be conducted pursuant to a protective
order to protect confidential, proprietary and/or trade secret business information, and/or
confidential financial and personnel or client-specific information. This is a single-plaintiff
employment matter in which the plaintiff has alleged Title VII sex/gender discrimination,
religious discrimination, retaliation, and FMLA interference and retaliation.

Plaintiff's

employment was terminated after an investigation concluded that Plaintiff violated the Code
of Conduct due to her expense reporting practices.

In Plaintiff's R26(a)(1) Initial

Disclosures, Plaintiff has indicated that discovery is needed on, among other things, specific
expense reports belonging to Plaintiff and to other District Managers employed by AbbVie
Inc.; performance reviews of other District Managers employed by AbbVie Inc., the
investigation into Plaintiff's expense reporting practices; and documents regarding Plaintiff's
intermittent FMLA leave.

The confidential, proprietary, and/or trade secret business

information, including business practices; internal policies; Plaintiff's medical leave records;
compensation records; financial records; personnel records, including performance reviews;
and other confidential and sensitive information about current and former employees are
subject to protection for good cause. Further the financial and/or personnel records of the
current and former employees and the financial records of Defendants constitute sensitive
and confidential information subject to protection for good cause pursuant to Fed. R. Civ. P.
26(c) (2).
To expedite the flow of discovery material, facilitate the prompt resolution of
disputes over claims of confidentiality, provide adequate protection for material deemed
confidential, and ensure that protection is afforded only to such deemed material, upon the
joint stipulation of the parties, and for good cause shown, IT IS HEREBY ORDERED:
1.

Confidential Information. Plaintiff and Defendants agree that certain

documents and information, if produced or disclosed in this litigation, should be treated as
confidential. As used in this Order the term “CONFIDENTIAL INFORMATION” shall be
applicable to:
(a)

Proprietary information constituting Defendant's trade secrets

(b)

Proprietary information belonging to Defendants, such as

and know-how;

internal codes, policies, and procedures that are not available to the public and information
disclosing Defendants' internal operations that is not available to its competitors;
(c)

Defendants’ financial information including net worth and tax

records;

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(d)

Any customer, licensee, supplier and vendor information;

pricing, cost and other financial or marketing information; information relating to the
processes, apparatus or analytical techniques to be used by a party for its proposed
commercial production of products; and any other information as agreed to by the parties that
a party believes in good faith could be used by a competitor to harm its business;
(e)

Communications made in confidence between employees of

Defendants and the Human Resources Department or Office of Ethics and Compliance, or
related employees;
(f)

Medical

or

health-related

information;

compensation

information; personnel information including disciplinary actions and performance ratings;
and personal identifying information, including but not limited to the home addresses,
telephone numbers, financial account numbers, and social security numbers of past or present
employees of Defendants; and
(g)

Financial, compensation, employment, benefits, and tax

documents, including paystubs, and medical or health-related information belonging to
Plaintiff or Plaintiff’s dependents.
All of the foregoing information, as well as documents, designated portions of deposition
testimony, and responses to interrogatories, requests for admissions, or requests for
production

of

documents

concerning

the

above-described

CONFIDENTIAL

INFORMATION may be designated as Confidential.
2.

Designating Documents and Information as Confidential.

Any

party to this action may designate as “Confidential Information” documents and responses to
interrogatories, requests for admissions, or requests for production of documents produced
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after entry of this Order by stamping or labeling the documents or responses with the word
“Confidential.” Documents or responses shall not be treated as confidential pursuant to this
Order unless they are stamped or labeled as “Confidential.” The inadvertent failure to
designate material as “Confidential” does not preclude a party from subsequently making
such a designation, and, in that case, the material is treated as confidential only after being
properly designated, pursuant to paragraph 6 herein. Unless otherwise ordered by the Court
or stipulated by the parties, only documents, responses to interrogatories, requests for
admissions, requests for production of documents, or testimony relating to the subjects
enumerated in paragraph 1 may be designated as Confidential Information. For purposes of
this Protective Order, the term "document" shall include all discovery materials, such as
interrogatories, requests for admission, document requests, responses to the foregoing,
affidavits, or other materials produced or provided in discovery. Documents and other
discovery materials designated CONFIDENTIAL, as well as all materials which quote from
or are based upon such material (including, but not limited to briefs) shall be subject to the
provisions of this Order.
3.

Designating Deposition Testimony as Confidential. Any party to

and deponent in this action may designate deposition testimony relating to the subjects
enumerated in paragraph 1 above as “Confidential Information” by advising counsel of
record by letter or e-mail within fourteen days after receipt of a copy of the transcript, or
such other time period as may be mutually agreed upon by the parties. All deposition
testimony shall be deemed confidential for a period of fourteen days after counsel’s receipt
of a copy of the transcript, or such other time period as may be mutually agreed upon by the
parties. Alternatively, any party may, on the record at the deposition, designate deposition
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testimony as confidential by advising all persons present at the deposition that the
information is confidential and subject to this Order.

If no party or deponent timely

designates Confidential Information in a deposition or via letter or e-mail after receiving a
transcript, then none of the transcript or its exhibits (other than those previously designated)
will be treated as confidential. There shall be no need to re-designate documents or exhibits
which have been previously designated as confidential.
4.

Limited Disclosure of Confidential Information. All documents,

testimony and other materials, or portions thereof, designated as CONFIDENTIAL under
this Protective Order and the contents of all such materials, as well as any duplicates, notes,
memoranda and other documents referring in whole or in part to such CONFIDENTIAL
INFORMATION, shall be maintained in the strictest confidence by any counsel or parties
receiving the same. Such information shall not be disclosed to any person for any purpose
other than for the purpose of pursuing this litigation.

Access to CONFIDENTIAL

INFORMATION shall be restricted to the following people:
a.

Parties (and any of their directors, officers, employees or agents who

are either required to or requested by counsel to work directly on this litigation) and
counsel for the parties in this action who are actively engaged in the conduct of this
litigation; and the partners, associates, secretaries, legal assistants, and employees or
agents of such counsel, to the extent reasonably necessary to render professional
services to the litigation;
b.

Persons who are expressly retained by counsel to assist in the

preparation of this litigation for trial, such as independent accountants, statisticians, or

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economists or other experts, and the staff working under the direct supervision of
such person retained to assist in the preparation of this litigation for trial;
c.

Persons with prior knowledge of the documents or the Confidential

Information contained therein, including but not limited to employees and former
employees of Defendants;
d.

Witnesses whose depositions are being taken or who are being

questioned at trial (or in deposition or trial preparation sessions with counsel for one
or more party in which any of the aforementioned witnesses participate, as long as the
disclosure occurs in the presence of counsel, or at counsel’s offices and no copies,
duplicates, images, or the like are removed or retained by any witness);
e.

Court personnel, including court reporters, persons operating video

recording equipment at depositions, and any special master or mediator appointed by
the Court;
f.

Jurors and alternate jurors empanelled for the trial of this case;

g.

Any person providing graphics or design services for purposes of

preparing demonstrative or other exhibits in this litigation, any jury or trial consulting
services, or any vendor providing document management or other litigation support
services;
h.

Any independent document reproduction services or document

recording and retrieval services; and
i.

Such other persons who may be specifically designated and qualified to

receive Confidential Information pursuant to Court Order.

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5.

Certification to Abide By Protective Order.

Before disclosing

Confidential Information to those persons specified in paragraphs 4(b), 4(g), and 4(h) hereof,
counsel shall first give a copy of this Protective Order to such persons who shall read this
Protective Order and be fully familiar with the provisions hereof and agree to abide thereby,
by signing a copy of the certification attached hereto as Exhibit A. Upon the request of a
party, the party disclosing the Confidential Information to a person specified in paragraphs
4(b), and 4(g), above shall provide copies of all such signed certifications received up to that
date. With respect to those persons specified in paragraph 4(d) (who do not fall into the
other subsections of paragraph 4), Confidential Information may be disclosed by the nondesignating party only during the course of a deposition or at trial, or at a witness preparation
meeting with counsel of record for one of the parties prior to the witness's testimony at
his/her deposition or at trial. Before disclosing Confidential Information to those person
specified in paragraph 4(d) (who do not fall into the other subsections of paragraph 4),
counsel for the non-designating party shall provide the witness with a copy of this Order, and
the witness may agree to abide by and sign such copy of the certification attached hereto as
Exhibit A, but if the witness refuses, the parties acknowledge that counsel may use the
Confidential Information with the witness at the witness preparation meeting with counsel of
record, at the witnesses' deposition or at trial, pursuant to the restrictions set forth in
paragraph 4(d) above.

If the witness refuses to sign the certification attached hereto as

Exhibit A, counsel must provide written notification of such refusal to counsel of the
opposing party within 10 days of receiving the refusal.
6.

Disputes Concerning Designation(s) of Confidential Information.

The designation of any material or document as Confidential Information is subject to
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challenge by any party. In the event that any party to this action disagrees at any stage of the
proceedings with the designation of information as confidential, the party shall first try to
resolve the matter on an informal basis. If the dispute cannot be resolved informally, the
party opposing the confidentiality of the information may apply for appropriate relief from
this Court. The following procedure shall apply to any such challenge.
(a)

Meet and Confer. A party challenging the designation of (or failure to

designate) Confidential Information must do so in good faith and must begin the process by
conferring directly with counsel for the designating party. In conferring, the challenging
party must explain the basis for its belief that the confidentiality designation was not proper
and must give the designating party an opportunity to review the designated material, to
reconsider the designation, and, if no change in designation is offered, to explain the basis for
the designation. The designating party must respond to the challenge within five (5) business
days.
(b)

Judicial Intervention. A party that elects to challenge a confidentiality

designation may file and serve a motion that identifies the challenged material and sets forth
in detail the basis for the challenge. Each such motion must be accompanied by a competent
declaration that affirms that the movant has complied with the meet and confer requirements
of this procedure. The burden of persuasion in any such challenge proceeding shall be on the
designating party. Until the Court rules on the challenge, all parties shall continue to treat the
materials as Confidential Information under the terms of this Order.
7.

Filing Under Seal. In the event a party believes it necessary to include

Confidential Information in a filing or exhibit to a filing with the Court, the party including
such Confidential Information must first file a motion and be granted leave to file that filing
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or exhibit under seal, in conformance with the Court’s administrative procedures for
electronically filing documents under seal in civil cases.

In the event that the

CONFIDENTIAL INFORMATION is not relevant to the subject matter at issue in the
submission, then it can be redacted from the filing.
8.

Inadvertent Failure to Designate.

Notwithstanding the other

provisions of this Order, any party who discloses information to any other party during the
course of discovery in the above-styled lawsuit without designating such disclosed
information as CONFIDENTIAL may subsequently elect to treat such disclosed information
as such upon a determination that such information is, in fact, confidential. An inadvertent
failure to designate a document or deposition transcript as Confidential Information does not,
standing alone, waive the right to so designate the document. The disclosing party shall
notify the receiving party or parties in writing of the disclosing party's election to so treat the
disclosed information, whereupon the receiving party or parties shall rank or stamp the newly
designated CONFIDENTIAL INFORMATION with the words CONFIDENTIAL or request
the disclosing party to furnish to the receiving party or parties a substitute set of such
materials bearing an appropriate legend. Information newly designated pursuant to this
paragraph shall be subject to the full force and effect of this Order with respect to future
disclosure by the receiving party; provided, however, that the receiving party or parties shall
under no circumstances be liable or accountable for any disclosure of the newly designated
information to any person during the interval between the time the new designation was first
provided to the receiving party and the time at which the disclosing party so subsequently
designates the information, nor shall the receiving party or parties be required to retrieve any
information distributed prior to such designation.
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9.

Use of Confidential Information. Confidential Information shall be

used only in connection with these proceedings and any appeals arising therefrom. No
information produced in discovery in this case, including but not limited to Confidential
Information, shall be used for any purpose other than in connection with this case and any
appeals arising therefrom. No Confidential Information shall be disclosed to any other
person, party, entity, agency, print or electronic media, or anyone outside this proceeding for
any purpose.

The parties and their counsel, however, have the right to use any such

information contained in these documents, or the documents themselves, in the trial of this
case. The parties do not waive any right to object at trial to the admissibility of any
document or during discovery to the discoverability of any document, which falls under the
scope of this Order, or portion thereof, or the right to file a motion in limine regarding the
use of any such documents. All information designated as CONFIDENTIAL under this
Protective Order shall be used only for purposes of this litigation, and not for purposes of any
other litigation or for any other technical, commercial or business advantage.
10.

Publicly Disclosed Information. Nothing herein shall be regarded as

precluding use of information in a document designated CONFIDENTIAL under this
Protective Order which: is public at the time of disclosure of thereafter becomes public
(unless made public by the party receiving such information); or is or has been lawfully
acquired by the receiving party from a source other than from the testimony, documents or
other material designated CONFIDENTIAL under this Protective Order. In any dispute
regarding whether information from a confidential document has fallen into the domain, the
burden of proving confidentiality shall fall on the party who claims that the information has
fallen into the public domain.
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11.

Third Party Documents.

Third parties producing documents,

testimony or other materials during the course of this action may designate the same as
CONFIDENTIAL INFORMATION under this Protective Order in the same manner as if
produced by a party and designated hereunder.
12.

Clawback of Protected Information Inadvertently Produced.

Pursuant to Federal Rule of Evidence 502, if materials protected from disclosure by the
attorney-client privilege, work product or any other privilege are inadvertently disclosed or
unintentionally produced, such disclosure shall in no way prejudice or otherwise constitute a
waiver of, or estoppel as to, any claim of attorney-client privilege, work product or any other
privilege to which the producing party or person would otherwise be entitled. If a claim of
inadvertent disclosure or unintentional production is made pursuant to this paragraph by the
disclosing party with respect to such material then in the custody of another party, such party
shall promptly return to the claiming party or person that material as to which the claim of
inadvertent production and / or unintentional production has been made. The party returning
such material may then move the Court for an order compelling production of the material,
but said motion shall not assert as a ground for entering such an order the fact or
circumstances of the inadvertent disclosure or unintentional production.
13.

Maintaining Confidentiality. Neither the termination of this action

nor the termination of employment of any person who had access to any CONFIDENTIAL
INFORMATION shall relieve any person from the obligation of maintaining both the
confidentiality and the restrictions on use of anything disclosed pursuant to this Order. In the
event that any person or party subject to this order having possession, custody or control of
any CONFIDENTIAL INFORMATION of any opposing party receives from a non-party a
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subpoena or other process to produce such information, such person or party shall promptly
notify by express mail the attorneys of record of the party claiming such confidential
treatment of its CONFIDENTIAL INFORMATION sought by such subpoena or other
process, and shall furnish such attorneys of record with a copy of said subpoena, process or
order. The party whose CONFIDENTIAL INFORMATION is sought by the subpoena or
other process shall have the responsibility, in its sole discretion and at its own cost, to move
against the subpoena or other process, or otherwise to oppose entry of an order by a court of
competent jurisdiction compelling production of the CONFIDENTIAL INFORMATION.
14.

Return of Confidential Information. Upon the final determination of

this action, including the expiration of time for any further appeals, whether by judgment,
settlement, or otherwise:
a.

Upon written request of the designating party, counsel of record for

each party receiving Confidential Information (exclusive of any documents marked as
"Confidential" that are in electronic form ("Electronically Stored Information"));
shall, within sixty days, return to the designating party all such documents containing
Confidential Information, or confirm in writing that all such documents have been
destroyed, except that all materials constituting work product of such counsel may be
maintained in such counsel’s possession;
b.

Upon written request of the designating party, all persons other than

counsel who received any Confidential Information, shall return to the producing
party all copies of Confidential Information that are in the possession of such
person(s), together with all notes, copies, abstracts, excerpts, memoranda, or other
parts, and counsel for the designating party shall destroy the documents and things in
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accordance with paragraph 14(a); but this provision shall not apply to court personnel
or jury members;
c.

With respect to Electronically Stored Information, the parties and their

counsel shall make reasonable efforts to remove such Electronically Stored
Information from their active systems, specifically, active email servers, active
document management systems, and active litigation support databases. The parties
and their counsel will not be required, however, to remove such Electronically Stored
Information from any back up or disaster recovery systems, or from any other source
which is not reasonably accessible because of undue burden or cost.
d.

Upon written request, counsel of record for each party shall confirm in

writing that all Confidential Information, documents and things have been returned to
the producing party or destroyed in accordance with the terms of paragraphs 14(a)
and 14(b) above.
15.

Modification of this Order. Nothing herein shall prevent any party

from applying to the Court for a modification of this Protective Order; or from applying to
the Court for further or additional protective orders; or from agreeing with the other parties
to any modification of this Protective Order subject to the approval of the Court. In the event
of any motion to modify this Protective Order, the receiving party shall make no disclosure
of any CONFIDENTIAL INFORMATION which is the subject of such motion until the
Court enters an order requiring such modification and all appeals from such order have been
exhausted.

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16.

No Admission.

Nothing in this Order shall be construed as an

admission as to the relevance, authenticity, foundation, admissibility, or discoverability of
any document, material, transcript, or other information.
17.

This Order shall take effect when entered and shall be binding upon all

counsel of record and their law firms, the parties, and persons made subject to this Order by
its terms.
SO ORDERED, this 26th day of April, 2013:

James P. O’Hara
U.S. Magistrate Judge James P. O'Hara

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEREMY DIDIER,
Plaintiff,
vs.
ABBOTT LABORATORIES, ABBOTT
LABORATORIES, INC., ABBOTT
PRODUCTS, INC. and ABBVIE, INC.
Defendants.

)
)
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) Case No.: 13-cv-2046 JWL/JPO
)
)
)
)
)
)
)

CERTIFICATE OF COMPLIANCE WITH PROTECTIVE ORDER
I hereby certify that I have read and am fully familiar with the provisions of
the Protective Order entered on ____________________ in the above-captioned matter,
hereinafter referred to as the "Protective Order."
As condition precedent to my review or handling of any of the documents or
other materials containing CONFIDENTIAL INFORMATION produced pursuant to the
Protective Order or my obtaining any such information contained in said documents or other
materials, I hereby agree to observe and comply with all of the provisions of the Protective
Order. I understand that the CONFIDENTIAL INFORMATION and my copies or notes
relating thereto may only be disclosed to or discussed with those person permitted by the
Protective Order to receive such information.

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At the conclusion of my engagement in connection with this litigation, I will
return all materials containing CONFIDENTIAL INFORMATION, copies thereof and notes
that I have prepared relating thereto, to counsel of record for the party by whom 1 was
retained.
I declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct and that this Certificate of Compliance is executed on
the

_____

day

of___________,

20__

at

[City

[State]______________.

[Signature]

Occupation/Job Title

Employer

Employer's Address

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or

Town]___________,

and