Martinez v. Stryker Corporation et al
PROTECTIVE ORDER. Signed by Judge Dana L. Christensen on 7/13/2017. (Attachments: # 1 Exhibit A) (NOS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
JUL 13 2017
THIS MATTER comes before the Court on the Parties' Joint Motion for
Protective Order. The Court having reviewed the same and being advised in the
premises, does hereby finds that good cause exists for the entry of this Stipulated
Protective Order ("Protective Order") in that the preparation and trial of this action
will require discovery of documents, testimony, information, or things claimed by one
or more ofthe parties to contain confidential business or commercial information, and
the ends ofjustice will be served by entry of an order setting forth procedures for and
rules governing discovery, copying, use and return of documents, deposition
transcripts, interrogator answers and other materials.
Accordingly, pursuant to F.R.C.P. 26(c), it is HEREBY ORDERED.
ADJUDGED AND DECREED that this Protective Order be executed and filed by
the Court, stating as follows:
SCOPE OF PROTECTIVE ORDER
This Protective Order shall apply to discovery initiated by either of the
parties to the other party or to any third parties and shall apply to all information,
documents, electronically stored information ("ESI") and/or things in the possession
of or under the control of any party or third party subject to discovery in this action.
This Protective Order shall further apply to all documents, the information contained
therein, and all other information produced or supplied in this case in any form,
whether revealed in a document, in deposition or other testimony, in discovery
responses, or otherwise by a party or third party, and designated by the producing
party as embodying "Confidential" or "Trade Secret" material.
PROCEDURES FOR PROTECTION OF CONFIDENTIAL OR
TRADE SECRET INFORMATION
"Confidential" or "Trade Secret" Material Defined
As used in this Protective Order, the term "Confidential Discovery
Material" means documents and other information provided in the course of
discovery of this action that are designated as "Confidential" or "Trade Secret"
pursuant to the terms of this Protective Order, or that have been previously designated
as such in other similar cases. The term "documents" as used herein shall be
interpreted broadly to encompass hard-copy and imaged documents as well as
electronically stored information ("ESI") of any type. This Protective Order is
applicable to all forms of discovery, including but not limited to deposition testimony,
answers to interrogatories, documents produced in response to requests for
production, responses to request for disclosure, responses to requests for admission,
medical records, and any documents recorded on computer disks. As used herein, a
"party" or the "parties" means a person/entity or persons/entities subject to this
Designation of Confidential Discovery Material
Documents or other discovery material may be designated as
"Confidential" or "Trade Secret" only to the extent that it consists of or includes trade
secret or confidential research development, competitive, proprietary or commercial
information, including, but not limited to, financial information, information relating
to ownership or control of any non-public company, and any information protected
from disclosure by any privacy or other law or governmental regulation, as well as
any other type of information given confidential status by the Court. Any failure to
designate a document "Trade Secret" shall not waive trade secret for any document
otherwise designated as "Confidential" pursuant to this Protective Order, and shall
not waive or preclude any future "Trade Secret" designation.
Confidential information includes information that would identify
patients and persons (excluding Plaintiff) associated with adverse events involving
human drugs, medical devices, and research subjects. See 21 C.F.R. §314.430; 21
C.F.R. §20.63. Defendants shall not be compelled to disclose this identifying
information and may redact this identifying information from discovery material
before production, provided, however, that such defendant shall maintain an
un-redacted copy of such discovery material for any further review by the Court.
The Producing Party may designate any document or information as
Confidential Discovery Material by stating or otherwise clearly marking it as
"Confidential" or "Trade Secret" in such a manner that will not interfere with
legibility or audibility.
To the extent that Confidential Discovery Material stored or recorded in
the form of electronic or magnetic media (including information, files, databases or
programs stored on any digital or analog machine-readable device, computers,
Internet sites, discs, networks, or tapes ("Electronic Discovery Material") is produced
in such form, the party producing such Electronic Discovery Material may designate
it as Confidential Discovery Material by cover letter referring generally to the
Electronic Discovery Material, and/or by designation in the accompanying load file.
Whenever a party to whom confidential Electronic Discovery Material is produced
reduces the confidential Electronic Discovery Material to hardcopy or image form,
that party shall mark each page of the hardcopy or image form with the
"Confidential" and/or "Trade Secret" designation.
With respect to deposition transcripts and exhibits, a party may indicate
on the record that a question calls for Confidential Discovery Material, in which case
the transcript of the question and answer shall be bound in a separate volume and
marked as "Confidential" and/or "Trade Secret" by the court reporter. Alternatively,
the party may designate information disclosed at the deposition as confidential by
notifying the other party(ies) in writing within thirty (30) days of receipt of the
transcript of the specific pages and lines which are to be designated confidential.
During such thirty (30) day period, the entire transcript shall be treated as
Confidential Discovery Material. Counsel must make a good faith attempt to
designate only those materials which contain confidential material. However, for
convenience, the parties may agree that entire deposition transcripts shall be treated
as Confidential Discovery Material.
Documents and information produced by a third party shall be treated as
Confidential Discovery Material for thirty (30) calendar days after production, in
order to allow the parties to review and assess documents and information for
confidentiality and designation.
If at any time prior to the trial of this action a party realizes that
previously undesignated documents or other materials should be designated as
Confidential Discovery Material, the party may so designate by advising all other
parties in writing. The designated documents or material will thereafter be treated as
Confidential Discovery Material pursuant to this Protective Order. Upon receipt of
such designation in wiring, each party shall take reasonable and appropriate action
to notify any and all recipients of such Confidential Discovery Material about the
protected status of that material and shall retrieve the newly designated Confidential
Discovery Material from any person who is not permitted by this Protective Order to
have such material.
Inadvertent Disclosure By Producing Party
Inadvertent production or other disclosure of documents subject to
work-product immunity, the attorney-client privilege, or other legal privilege that
protects information from discovery shall not constitute a waiver of the immunity,
privilege, or other production, provided that the Producing Party notices the
Receiving Party in writing when it becomes aware of such inadvertent production.
Upon notification, the Receiving Party shall immediately, at the Producing Party's
option, return or destroy the inadvertently-produced materials and all copies, and
shall delete the material and all copies from any litigation-support or other database.
The recipient shall destroy notes and work product reflecting the contents of such
materials. No further use or disclosure shall be made of the inadvertently-produced
materials, and the recipient shall take all reasonable and appropriate steps to retrieve
the materials, and all copies, from any person to whom the recipient has provided
Any party or individual having inadvertently received privileged or
protected information need not wait for notice from the Producing Party before
complying with the above and is expected to comply with the requirements of this
paragraph as soon as it is known or should be known that the document and
information contained therein is privileged and/or protected. If the party returning
such material does not agree with the privilege designation, the party returning such
material must write a letter to the Producing Party, setting forth the reason for
believing the material in question is not privileged. If the issue cannot be resolved
between the parties, the Producing Party shall move the Court, within ten (10) days
of the completion of such meet-and-confer efforts, to rule on the material's status and
shall produce a copy of the document to the Court for in camera inspection. 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.
Any party producing documents in this action must simultaneously
produce a privilege log, if any document has been withheld from production based
on the assertion of privilege. The privilege log will identify every document withheld
on the basis of privilege by: (1) author; (2) date; (3) recipients(s); (4) type of
document; and ( 5) privilege asserted. If only a portion of the document is privileged,
the Producing Party will only withhold that portion which is privileged, by redaction
if possible. A log must be produced with each production and each Producing Party
must produce an updated privilege log within a reasonable time of the determination
that additional documents need to be added.
A party who learns of an unauthorized or inadvertent disclosure of
Confidential Discovery Material by it or by any person to whom the party has
disclosed Confidential Discovery Material pursuant to this Protective Order shall
immediately (a) issue written notice of the unauthorized or inadvertent disclosure to
the producing party; (b) use best efforts to retrieve all copies of the Confidential
Discovery Material subject to unauthorized or inadvertent disclosure; (c) inform all
persons to whom unauthorized or inadvertent disclosure was made ofthe terms of this
Protective Order; and (d) use best efforts to secure a non-disclosure agreement in the
form attached as Exhibit A hereto from all persons to whom the unauthorized
disclosure was made.
Disputes as to Confidential Discovery Material
Any party objecting to the designation of any material as Confidential
Discovery Material, or requesting further limits on disclosure (such as "attorney eyes
only"), may at any time prior to the trial of this action serve upon counsel for
interested parties a written notice stating with particularity the reasons for the
objection. If the parties cannot resolve the objection within fourteen (14) business
days after the time the notice is received, it shall be the obligation of the party
designating the information as Confidential Discovery Material to submit the dispute
to the Court pursuant to the Court's ordinary procedures for handling discovery
disputes. If such dispute is submitted to the Court within thirty (30) days after the
time the notice of objection is received, the disputed material shall be treated as
Confidential Discovery Material pursuant to this Protective Order until the Court
rules on the dispute. If the designating party fails to submit the dispute to the Court
within thirty (30) days after the time notice of the objection is received, the disputed
material shall lose its designation as Confidential Discovery Material and shall not
thereafter be treated as Confidential in accordance with this Protective Order.
DISCLOSURE OF CONFIDENTIAL DISCOVERY MATERIAL
Non-Disclosure of Confidential Discovery Material
Any party who receives any Confidential Discovery Material in the
course of discovery in this action shall not disclose such Confidential Discovery
Material to anyone else except as expressly permitted by this Protective Order.
All information which is or has been produced or discovered in the
above titled action and designated "Confidential" or "Trade Secret" shall be used by
the receiving party solely for the prosecution or defense of this action, and shall not
be used by any such party, their counsel of record or any other person to whom such
material is disclosed for any other purpose, unless the information is available to the
general public without breach of the terms of this Protective Order, or is the subject
of written agreements between the parties' counsel regarding its use in relation to
Each person who has access to Confidential Discovery Material shall
take all necessary precautions to prevent the unauthorized or inadvertent disclosure
of such material.
Permitted Use of Confidential Discovery Material
No party other than the party designating material as Confidential
Discovery Material shall disclose such material to any other person, except as
Counsel for the parties in the specific action in which the documents are
to be produced, including any paralegal, clerical, and other staff
employed by counsel for work on this action;
With respect to a specific document, the document's author, addressees,
and any other person shown on the face of the document as having
received a copy;
Any witness who counsel for party in good faith believes may be called
to testify at trial or deposition in this action, provided such person has
first executed a non-disclosure agreement in the form attached to this
Protective Order as Exhibit A. However, if the witness is currently an
employee, officer, director, contractor, subcontractor or consultant of an
entity that is presently engaged in the research, development,
manufacture, or sale of any product that competes with, or is similar to,
any product( s) addressed in documents produced as Confidential
Discovery Material, the party seeking the testimony must also first
receive written consent of counsel for the party disclosing the
Confidential Discovery Material, or obtain an order from the Court
permitting the disclosure to said witness;
Any person retained by a party to serve as an expert consultant or
witness or otherwise provide specialized advise to counsel in connection
with this action, provided such person has first executed a
non-disclosure agreement in the form attached;
Insurers and indemnitors to the extent reasonably necessary to defend
and evaluate the claims;
Official court reporters; and
The Court, jury, mediators, and support personnel.
Prior to any disclosure of Confidential Discovery Material to any person
referred to in subparagraphs (c) or (d) of paragraph 19 above, the person shall be
provided by counsel with a copy of this Protective Order and shall sign a
non-disclosure agreement in the form attached as Exhibit A hereto.
non-disclosure agreement will state that the person has read this Protective Order and
agrees to be bound by its terms. All non-disclosure agreements will be maintained
throughout this action by the attorneys obtaining them. At the conclusion of this
action, upon a showing of good cause and necessity, any party may seek an order
requiring production of non-disclosure agreements, but nothing in this 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.
Filing Confidential Discovery Material
The Parties shall comply with L.R. 7.2 when filing motions to restrict
and when filing papers and documents under restriction. Confidential Discovery
Material shall not be filed with the Court except when required in connection with
matters pending before the Court and the parties shall follow L.R. 7.2 with respect to
Confidential Discovery Material.
Whenever possible, disputes regarding confidentiality designations
should be resolved before Confidential Discovery Material or any document
containing or referencing it is filed with the Court. For any item of Confidential
Discovery Material for which a designation dispute has not been resolved, that item
and any document containing or referencing it will be filed under restriction (at least
Any attorney wishing to file or submit to the Court any Confidential
Discovery Material, or any affidavits, memoranda, exhibits or other papers containing
or making reference to Confidential Discovery Material, then such attorney shall first
consider whether redacting portions of such materials that contain or refer to
confidential information is practical and will protect the Confidential Discovery
Material while leaving othernon-confidential information meaningful. If so, redacted
versions of such materials shall be filed with the Court according to the standard
Confidential Material Offered as Evidence at Trial
The parties shall make a reasonable, good-faith effort to resolve any
disputes over the use of Confidential Material prior to the time of trial or any court
hearing. If the parties cannot resolve such dispute, they shall seek judicial
intervention prior to the time of trial or court hearing.
The provisions of this Protective Order shall not affect, nor does this
Order limit, the use or admissibility of Confidential Discovery Material (or references
to that material) as evidence at trial, or during any arbitration, mediation, hearing, or
similar proceeding in this action or as party of the record on appeal, provided that
either party may seek appropriate Order of the Court to protect such Confidential
Discovery Material at trial or other such addressed proceedings. Absent court order
to the contrary, the use or production of Confidential Discovery Material at trial by
any party, under restriction or under such other terms as required by the Court to
maintain the confidentiality of that material, does not waive the protection of such
Confidential Discovery Material required under this Protective Order in subsequent
proceedings or in any other case.
PROCEDURES UPON THE CONCLUSION OF THIS LITIGATION
Return of Confidential Discovery Material
Except with respect to Confidential Discovery Material in the possession
of the Court, within thirty (30) days after entry of dismissal or of final judgment in
this action, including appeals, and upon written request, all Confidential Discovery
Material, and all copies (including those in electronic format), shall promptly be
returned to the Producing Party or, with the permission of the Producing Party, be
Additionally, Plaintiffs and Defendant's counsel shall cooperate in
confirming that said documents and information in the possession of the Qualified
Persons other than Court Personnel have been returned to Plaintiff and/or Defendant,
as the case might be. If requested by Plaintiff or Defendant, all Qualified Persons
other than Court Personnel to whom any Confidential Discovery Material was
disseminated shall sign a certification to verify that all documents and materials in
their possession, containing Confidential Discovery Material, have been returned.
Continuing Jurisdiction of the Court
After termination of this litigation, the provisions of this Protective
Order shall continue to be binding unless otherwise ordered by the Court. This Court
retains and shall have jurisdiction over the parties and recipients of Confidential
Discovery Material to the extent necessary to modify this Protective Order, enforce
its obligations, or to impose sanctions for any violation.
Nothing in this Protective Order shall prevent any party from seeking
further or additional protection, or removing protection, for Confidential Discovery
Additional parties may be added to this action as allowed under the
applicable Rules of Civil Procedure. Before receiving Confidential Discovery
Material, a new party must agree to be bound by the terms of this Protective Order as
ifthe party had stipulated to it at the time of entry. No newly added party shall have
access to Confidential Discovery Material until the party is subject to the terms of this
Any discovery material designated as "Trade Secret" shall be treated in
all respects as Confidential Discovery Material.
manufacturers and distributors of medical devices be joined as a party
to this litigation, as to those manufacturers and distributors, any "Trade
Secret" discovery material shall only be produced to counsel (including
in-house counsel) as defined in paragraph 14(a), and not any other
employees of those parties. The purpose of this paragraph is to prevent
manufacturers and distributors of medical devices from having access
to the other's trade secret discovery material, except as needed by
counsel defending this action.
The Protective Order is intended to comport with the requirements ofthe
Health Insurance Portability and Accountability Act ("HIPAA"). Any identifiable
health information shall be automatically deemed "Confidential" and shall be treated
as Confidential Discovery Material under the terms of this Order, without being
stamped as "Confidential" by the producing party. Nothing in this Order shall
prevent a party from objecting that documents do not contain individually identifiable
health information, or are not otherwise subject to the requirements of HIPAA.
Nothing in this Protective Order shall preclude a party from using or
disclosing its own Confidential Discovery Material in any manner it sees fit, without
the prior consent of any other party and without waiving its "Confidential" or "Trade
Any party served with a subpoena or other notice compelling production
of Confidential Discovery Material shall immediately give written notice to counsel
for the Producing Party.
Nothing in this Order shall preclude any party from asserting the
attorney-client, work product, or any other applicable privilege as to any document
or information. It is understood and agreed that nothing herein constitutes a waiver
of the right of any party to raise or assert any objections, including but not limited to
defenses or objections with respect to the use, relevance, or admissibility at trial of
any evidence. This Order shall not be construed as a waiver by any party of any
legally cognizable privilege or protection to withhold any document or information,
or of any right that any party may have to assert such privilege or protection at any
stage of the proceeding.
Neither the taking of any action in accordance with the provisions ofthis
Protective Order, nor the failure to object thereto, shall be construed as a waiver of
any claim or defense in this action. The entry of this Protective Order shall not be
construed as a waiver of any right to object to furnishing information in response to
a discovery request or to object to a requested inspection of documents or things.
Nothing contained in this Protective Order, and no action taken in compliance with
it, shall: (a) operate as an admission by any party or person that any particular
document or information is or is not confidential; (b) operate as a waiver of any claim
or defense in this action; or (c) prejudice in any way the right of any party or person
to seek a Court determination of whether or not particular documents or information
should be disclosed or, if disclosed, whether or not they should be deemed
Confidential Discovery Material and subject to this Protective Order.
Nothing in this Protective Order shall preclude any Party from filing a
motion seeking further or different protection from the Court.
DATED this~ day of July, 2017.
Dana L. Christensen, Chief Judge
United States District Court
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