Lange v. K-V Pharmaceutical Company
Filing
26
ORDER granting 25 Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICK D. LANGE, Chapter 7 Trustee,
Plaintiff,
v.
K-V PHARMACEUTICAL COMPANY,
Defendant.
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Case No. 4:11-CV-3034
STIPULATED PROTECTIVE ORDER
The parties to this action have moved that the Court enter a protective order. The Court
has determined that the terms set forth herein are appropriate to protect the respective interests of
the parties, the public, and the Court. Accordingly, it is ORDERED:
1.
Scope. All documents produced in the course of discovery, including initial
disclosures, all responses to discovery requests, all deposition testimony and exhibits, other
materials which may be subject to restrictions on disclosure for good cause and information
derived directly therefrom (hereinafter collectively "documents"), shall be subject to this Order
concerning confidential information as set forth below. As there is a presumption in favor of
open and public judicial proceedings in the federal courts, this Order shall be strictly construed in
favor of public disclosure and open proceedings wherever possible. The Order is also subject to
the applicable rules of procedure and local rules on matters of procedure and calculation of time
periods.
2.
Form and Timing of Designation.
A party may designate documents as
confidential and restricted in disclosure under this Order by placing or affixing the words
"CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER" on the document in a manner that
will not interfere with the legibility of the document and that will permit complete removal of the
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CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER designation. Documents shall be
designated CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER prior to or at the time of
the production or disclosure of the documents. The designation "CONFIDENTIAL – SUBJECT
TO PROTECTIVE ORDER" does not mean that the document has any status or protection by
statute or otherwise except to the extent and for the purposes of this Order.
3.
Documents Which May be Designated CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER.
Any party may designate documents as CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER upon making a good faith determination that the
documents contain information protected from disclosure by statute or that should be protected
from disclosure as confidential personal information, medical or psychiatric information, trade
secrets, personnel records, or such other sensitive commercial information that is not publicly
available.
4.
Depositions.
Deposition testimony shall be deemed CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER only if designated as such within 30 days of receipt of
the deposition transcript, in writing. Such designation shall be specific as to the portions of the
transcript or any exhibit to be designated as CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER. Thereafter, the deposition transcripts and any those portions so designated shall be
protected as CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER, pending objection,
under the terms of this Order.
5.
Protection of Confidential Material.
(a)
General Protections.
Documents designated CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER under this Order shall not be used or disclosed
by the parties, counsel for the parties or any other persons identified in ¶5(b) for any
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purpose whatsoever other than to prepare for and to conduct discovery and trial in this
action, including any appeal thereof.
(b)
Limited Third-Party Disclosures. The parties and counsel for the parties
shall not disclose or permit the disclosure of any CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER documents to any third person or entity except as set forth in
subparagraphs (1)-(5). Subject to these requirements, the following categories of persons
may be allowed to review documents that have been designated CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER:
(1)
Counsel. Counsel (or the parties and employees and agents of
counsel) who have responsibility for the preparation and trial of the action;
(2)
Parties. Parties and employees of a party to this Order1.
(3)
Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;
(4)
Consultants,
Investigators
and
Experts.
Consultants,
investigators, or experts (hereinafter referred to collectively as "experts")
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action or proceeding, but only after such
persons have completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound; and
(5)
Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions as may
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NOTE: If the CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER documents contain highly sensitive
trade secrets or other highly sensitive competitive or confidential information and disclosure to another party would
result in demonstrable harm to the disclosing party, then the parties may stipulate or move for the establishment of
an additional category of protection that prohibits disclosure of such documents or information to category (2) or
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be agreed or ordered. All such persons shall execute the certification
contained in Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound.
Control of Documents. Counsel for the parties shall take reasonable and
(c)
appropriate measures to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL pursuant to the terms of this Order.
Counsel shall maintain the
originals of the forms signed by persons acknowledging their obligations under this Order
for a period of 1 year after dismissal of the action, the entry of final judgment and/or the
conclusion of any appeals arising therefrom.
Copies. Prior to production to another party, all copies, electronic images,
(d)
duplicates, extracts, summaries or descriptions (hereinafter referred to collectively as
("copies")
of
documents
designated
as
CONFIDENTIAL
–
SUBJECT
TO
PROTECTIVE ORDER under this Order, or any individual portion of such a document,
shall be affixed with the designation "CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER" if the word does not already appear on the copy.
All such copies shall
thereafter be entitled to the protection of this Order. The term "copies" shall not include
indices, electronic databases or lists of documents provided these indices, electronic
databases or lists do not contain substantial portions or images of the text of confidential
documents or otherwise disclose the substance of the confidential information contained
in those documents.
(e)
Inadvertent Production.
Inadvertent production of any document or
information without a designation of "CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER" shall be governed by the applicable rules of procedure.
6.
Filing of CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER
Documents Under Seal. The Court highly discourages the manual filing of any pleadings or
documents under seal. To the extent that a brief; memorandum or pleading references any
that limits disclosure only to specifically designated in-house counsel or party representative(s) whose assistance is
reasonably necessary to the conduct of the litigation and who agree to be bound by the terms of the order.
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document marked as CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER, then the
brief, memorandum or pleading shall refer the Court to the particular exhibit filed under seal
without disclosing the contents of any confidential information
(a)
Before any document marked as CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER is filed under seal with the Clerk, the filing party shall first
consult with the party that originally designated the document as CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER to determine whether, with the consent of that
party, the document or a redacted version of the document may be filed with the Court
not under seal.
(b)
Where agreement is not possible or adequate, before a CONFIDENTIAL
– SUBJECT TO PROTECTIVE ORDER document is filed with the Clerk, it shall be
placed in a sealed envelope marked "CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER DOCUMENTS", displaying the case name, docket number, a designation of
what the document is, the name of the party in whose behalf it is submitted, and name
of the attorney who has filed the documents on the front of the envelope. A copy of any
document filed under seal shall also be delivered to the judicial officer's chambers.
(c)
To the extent that it is necessary for a party to discuss the contents of any
confidential information in a written pleading, then such portion of the pleading may be
filed under seal with leave of Court. In such circumstances, counsel shall prepare two
versions of the pleadings, a public and a confidential version. The public version shall
contain a redaction of references to CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER documents. The confidential version shall be a full and complete version of
the pleading and shall be filed with the Clerk under seal as above. A copy of the
unredacted pleading also shall be delivered to the judicial officer's chambers.
(d)
If any party notifies another party that they intend or need to file one or
more of the Protected Documents in response to a motion previously filed, the party
who filed such motion specifically agrees to provide whatever extension or continuance
is necessary to file such response to allow for compliance with paragraph. Specifically,
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upon request, the parties agree to provide an extension or continuance for the filing of
any response to any motion to provide appropriate time to comply with applicable law
regarding filing such documents under seal.
7.
Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL
– SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party or
nonparty with standing to object (hereafter "party"). Before filing any motions or objections to
a confidentiality designation with the Court, the objecting party shall have an obligation to meet
and confer in a good faith effort to resolve the objection by agreement. If agreement is reached
confirming or waiving the CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER
designation as to any documents subject to the objection, the designating party shall serve on all
parties a notice specifying the documents and the nature of the agreement.
8.
Action by the Court. Applications to the Court for an order relating to any
documents designated CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER shall be by
motion under the applicable rules of procedure and local rules of the Court and any other
procedures set forth in the presiding judge's standing orders or other relevant orders. Nothing in
this Order or any action or agreement of a party under this Order limits the Court's power to
make any orders that may be appropriate with respect to the use and disclosure of any
documents produced or use in discovery or at trial.
9.
Use of Confidential Documents or Information at Trial. All trials are open to
the public. Absent order of the Court, there will be no restrictions on the use of any document
that may be introduced by any party during the trial. If a party intends to present at trial
CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER documents or information derived
therefrom, such party shall provide advance notice to the other party at least five (5) days before
the commencement of trial by identifying the documents or information at issue as specifically
as possible (i.e., by Bates number, page range, deposition transcript lines, etc.) without
divulging the actual CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER documents or
information. The Court may thereafter make such orders as are necessary to govern the use of
such documents or information at trial.
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10.
Obligations on Conclusion of Litigation.
(a)
Order Remains in Effect. Unless otherwise agreed or ordered, this
Order shall remain in force after dismissal or entry of judgment not subject to further
appeal.
(b)
Return of CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER Documents. Within thirty days after dismissal or entry of final judgment not
subject to further appeal of all other lawsuits in which HOP is lead counsel in an FTS
Cases, all documents treated as CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER under this Order, including copies as defined in ¶5(d), shall be returned to the
producing party unless: (1) the document has been offered into evidence or filed
without restriction as to disclosure; OR (2) the party in possession of such document(s)
elects to destroy the documents and certifies to the producing party that it has done so.
Notwithstanding the above requirements to return or destroy documents, counsel may
retain attorney work product, including an index which refers or relates to information
designated CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER, so long as that
work product does not duplicate verbatim substantial portions of the text or images of
confidential documents. This work product shall continue to be CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER under this Order. An attorney may use his or
her work product in a subsequent litigation provided that its use does not disclose or use
CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER documents.
(c)
Return of Documents Filed under Seal. After dismissal or entry of
final judgment not subject to further appeal, the Clerk may elect to return to counsel for
the parties or, after notice, destroy documents filed or offered at trial under seal or
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otherwise restricted by the Court as to disclosure.
11.
Order Subject to Modification. This Order shall be subject to modification by
the Court on its own motion or on motion of a party or any other person with standing
concerning the subject matter.
12.
No Prior Judicial Determination.
This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any documents
or information designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER by
counsel or the parties is subject to protection applicable law until such time as the Court may
rule on a specific document or issue.
13.
Persons Bound. This Order shall take effect when entered and shall be binding
upon all counsel and their law firms, the parties, and persons made subject to this Order by its
terms.
So Ordered.
Dated: 12/5/2011
______________________________________
United States
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Stipulated and Agreed to By:
RICK D. LANGE, Chapter 7 Trustee, Plaintiff,
K-V PHARMACEUTICAL COMPANY,
Defendant,
By:
# 8146
Dou
Ke
ved & Peter, PC
3 S. 13th St., S. 100
Lincoln, NE 68508-2795
(402) 475-8230 Telephone
(402) 475-8328 Facsimile
By:
chael S. D gan, #20372
Husch Blac ell LLP
1620 Dodge Street, Suite 2100
Omaha, NE 68102
(402) 964-5000 Telephone
(402) 964-5050 Facsimile
ATTORNEY FOR PLAINTIFF
ATTORNEY FOR DEFENDANT
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ATTACHMENT A
ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
___________________ in the above-captioned action and attached hereto, understands the
terms thereof; and agrees to be bound by its terms. The undersigned submits to the jurisdiction of
the Court herein in matters relating to the Protective Order and understands that the terms of the
Protective Order obligate him/her to use documents designated CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER in accordance with the Order solely for the purposes of the above
captioned action, and not to disclose any such documents or information derived directly
therefrom to any other person, firm or concern.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
______________________________________
Job Title:
______________________________________
Employer:
______________________________________
Business Address:
_______________________________
________________________________
________________________________
Date: _______________________
________________________________
Signature
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