Hart v. Novartis Consumer Health, Inc.
PROTECTIVE ORDER. Ordered by Magistrate Judge Cheryl R. Zwart. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CASE NO.: 4:14-cv-03231
WHEREAS the Parties agree that the Parties to this action may consider certain
information, documents, and other items discoverable in the above captioned matter,
pursuant to Fed. R. Civ. P. 26(c), to be Confidential and that such party may seek to
protect such items from disclosure, or to designate such items Confidential to avoid
making such information available to non-disclosed party representatives, party
employees, hon-parties or the general public;
IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto,
through their undersigned counsel, that:
The following definitions shall apply to the Stipulated Protective Order to
be issued in this action:
"Attorneys" means counsel of record;
"Confidential" documents or materials are documents designated
pursuant to paragraph 2;
"Protected" documents or materials are documents and/or materials
designated pursuant to paragraph 2, and protected in accordance with an Order of this
"Documents" are all materials within the scope of FED. R. CIV. P. 26 and
"Written Assurance" means an executed document in the form attached
as Exhibit A.
Confidential and/or Protected Documents/Material. As used herein,
the term "Confidential and/or Protected Documents/Material" shall mean confidential
personal information designated by a party in good faith to be Confidential and/or
"information protected by state statute and any Order of this Court." Pursuant to Order
of this Court: the following information is also considered Confidential or Protected
Material and/or Confidential or Protected Information: Any personnel files or data of any
present or past applicants for employment or employees of the Defendant. A party may
designate any document, including interrogatory responses, other discovery responses,
or transcripts, to be Confidential or Protected that it in good faith contends to constitute
or contain Confidential or Protected material or information.
Each party shall designate such material it deems Confidential or Protected by
marking all documents with the designations "Confidential" or "Protected". In lieu of
marking a document with said designations, the producing party can produce written
documentation in which it identifies the documents it designates Confidential or
Protected. Only such portions of a deposition transcript as are affirmatively designated
in writing by a party to be Confidential or Protected shall be treated as Confidential
and/or Protected. The party designating a portion of a deposition transcript, as such,
shall provide written notice to all parties by listing the page and inclusive line numbers of
the material to be kept Confidential and/or Protected, and shall designate such pages
Confidential and/or Protected. In any deposition transcript in which any portion of the
transcript has been designated Confidential/Protected by any party, the court reporter,
or the party holding the original transcript, shall imprint the word "Confidential" or
"Protected" on the front page of the original of the deposition transcript. A deposition
containing Confidential and/or Protected information shall not be filed with this Court
unless it is filed as provided in Paragraph 8 of this Joint Stipulation for Protection Order.
There shall be no need to re-designate documents used in exhibits to transcripts which
have been previously designated as Confidential or Protected.
Expert reports and/or summaries containing Confidential and/or Protected
information shall be automatically deemed Confidential and/or Protected if the
information used to prepare the expert reports and/or summaries included Confidential
and/or Protected Materials and/or Confidential and/or Protected information. An expert
report may avoid such a designation if the expert report avoids specifically referencing
Confidential or Protected information and/or replaces Confidential or Protected
information or with non-Confidential/Protected descriptions.
Litigation of this Action. As used herein, the phrase "litigation of this
action" shall mean preparation for any hearing, trial, or appeal of this action, including
but not limited to, pre-trial discovery, trial of this action, dispute resolution, and any
judicial proceeding which relates to the subject matter of this action.
Use of Confidential or Protected Information. Unless and until agreed
by the undersigned parties, or ordered by the Court, all materials and/or information
appropriately designated to be Confidential and/or Protected, and any summaries,
Confidential/Protected materials, shall be kept and treated as Confidential or Protected
and shall be used only for purposes of the litigation of this action.
Persons to Whom Confidential Information May be
Confidential or Protected information may only be disclosed or made
available on a need-to-know basis by the party receiving such information or documents
to "Qualified Persons" who are defined to consist of:
The United States District Court for the District of Nebraska,
including court personnel and members of the jury;
The parties named
in this action,
including the corporate
representative(s) of Defendant (including any of its former and/or current officers,
directors, employees, or agents);
secretarial, and paralegal staff employed by such counsel;
Court reporters and videographers and related staff employed
by such service providers in this action;
recording and retrieval services;
Persons with prior knowledge of the documents or the Confidential
information and/or Protected information contained therein;
Retained and/or potential experts, consultants, and/or investigators
(including their employees and/or support staff) selected by a party to this action
to assist in the prosecution or defense of this action;
Interviewees, potential witnesses, deponents, hearing or trial
witnesses (as long as the disclosure occurs in the presence of counsel, and
copies, duplicates, images, or the like are not removed or retained by any
interviewee, potential witness, deponent, or hearing or trial witness); and
Any other person agreed to in writing by the parties.
Disclosure of Protective Order to "Qualified Persons."
"Qualified Person or Entity" to whom Confidential or Protected information or material
is disclosed pursuant to this Order shall be advised and execute a Written Assurance
that the Confidential or Protected information is being disclosed pursuant to and subject
to the terms of this Order.
No Admission or Waiver. Compliance with the terms of this Order by
a party or non-party shall not operate as an admission that any particular document is
or is not (a) Confidential, (b) Protected, (c) privileged, or (d) admissible in evidence.
Counsel expressly agree that nothing in this Order shall serve to waive the right of
any party to object at trial to the admissibility of any document or portion thereof, or
the right to file a motion in limine regarding the use at trial of any document or portion
Use of Confidential Information During Litigation.
In the event a receiving party wishes to use any Confidential and/or
Protected information or materials in any affidavits, briefs, memoranda of law,
deposition transcripts, or other papers filed with the Court in this action, the party
submitting the information to the Court shall file a motion to file restricted access
documents. The motion shall state the restricted access documents filed contain
Confidential and/or Protected information which is subject to an agreed protective
order between the parties, and not to be placed on the public docket except upon
order of the Court.
Documents filed by counsel as restricted access documents can be
accessed and viewed by the attorneys of record and the Court, but not by the
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Once the motion to file as restricted access documents is
granted, these documents will continue to be accessible for viewing by only the
Court and the attorneys of record during the pendency of this case and after its
This paragraph does not apply to exhibits offered at a hearing. Any
party shall be entitled to seek a protective order concerning Confidential and/or
Protected material to be introduced in such a proceeding as it deems reasonable
and/or necessary to protect disclosure of such information to the public. No later
than fourteen (14) days before the date of any hearing or trial, a receiving party
shall advise a producing party in writing of any Confidential and/or Protected
material he intends to use in such proceeding to afford the producing party an
opportunity to seek a protective order.
Plaintiff's Review of Confidential Information. During the litigation of
this action, Plaintiff shall be allowed to review Confidential and/or Protected material
and/or Confidential and/or Protected information in her attorney's office. Plaintiff shall
not maintain a separate copy nor remove any Confidential and/or Protected material
and/or Confidential and/or Protected information from her attorney's office.
Return of Confidential Information. Promptly upon completion of this
action, each party shall return to the designating party all documents designated by that
party as Confidential and/or Protected and all copies and excerpts thereof, except
deposition transcripts or documents filed with the Court.
Each party shall certify in
writing that it has returned all documents designated as Confidential and/or Protected in
accord with this paragraph.
Termination of the litigation of this action shall not,
however, relieve any person to whom Confidential and/or Protected material and/or
Confidential and/or Protected information was disclosed, including counsel for the
parties, from the obligation of maintaining the confidentiality of all such material or
information received pursuant to this Joint Stipulation for Protective Order.
Objecting to Material Designated as Confidential. Any party may object
to the designation by any other party of any material as Confidential or Protected by
notifying the party that designated the material as Confidential/Protected in writing and
stating the basis for its objection. The parties shall, within seven (7) days after service
of the objection, confer in an attempt to resolve the dispute. If the designating party
refuses to confer within the required seven (7) days, or if the parties are unable, after
conferring, to resolve the matters, the dispute may be submitted to the Court for
resolution. The party challenging the designation of materials as Confidential and/or
Protected shall have the burden to establish the impropriety of that designation. If the
Court determines that a party has unreasonably or in bad faith designated documents or
materials to be Confidential and/or Protected which are neither confidential nor entitled
to protection, the Court may award costs and sanctions as permitted under the Federal
Rules of Civil Procedure.
If a party inadvertently produces any
Confidential or Protected information without designating it as such in accordance with
the provisions of this order, the producing party may give written notice to the receiving
party that the information produced is deemed Confidential or Protected information
and should be treated as such in accordance with the provisions of this Order. The
receiving party must treat such information as Confidential or Protected information
from the date such notice is received. Disclosure, prior to the receipt of such notice, of
such Confidential or Protected information to persons not authorized to receive such
Confidential or Protected information shall not be deemed a violation of this Order;
provided, however, that the party making such disclosure shall make all reasonable
efforts to notify any party to whom such disclosure was made that such information is
Confidential or Protected pursuant to this Order. The parties shall attempt in good faith
to retrieve any inadvertently produced Confidential or Protected information from
anyone who is not a "qualified person" pursuant to this Order.
Inadvertent Disclosure or Production of Documents.
The inadvertent production of any document or other information
during discovery in this action shall be without prejudice to any claim that such
material is Protected by any legally cognizable privilege or evidentiary protection
including, but not limited to, the attorney-client privilege or the work product
doctrine, and no party shall be held to have waived any rights by such
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Upon written notice of an unintentional production by the producing
party or oral notice if notice must be delivered at a deposition, the receiving party
must promptly return or destroy the specified document and any hard copies the
receiving party has and may not use or disclose the information until the privilege
claim has been resolved. To the extent that the producing party insists on
the return or destruction of electronic copies, rather than disabling the
documents from further use or otherwise rendering them inaccessible to the
receiving party, the producing party shall bear the costs of the return or
destruction of such electronic copies.
To the extent that the information contained in a document subject
to a claim has already been used in or described in other documents generated
or maintained by the receiving party, then the receiving party will sequester such
documents until the claim has been resolved. If the receiving party disclosed the
specified information before being notified of its inadvertent production, it must
take reasonable steps to retrieve it. The producing party shall preserve the
specified information until the claim is resolved.
The receiving party shall have ten (10) days from receipt of
notification of the inadvertent production to determine in good faith whether to
contest such claim and to notify the producing party in writing of an
objection to the claim of privilege and the grounds for that objection.
The producing party will then have ten (10) days from the receipt of
the objection notice to submit the specified information to the Court under
restricted access for a determination of the claim and will provide the Court with
the grounds for the asserted privilege or protection. Any party may request
expedited treatment of any request for the Court's determination of the claim.
Upon a determination by the Court that the specified information
is Protected by the applicable privilege, and if the specified information has been
sequestered rather than returned or destroyed, the specified information shall be
returned or destroyed.
Upon a determination by the Court that the specified information is
not Protected by the applicable privilege, the producing party shall bear the costs
of placing the information into any programs or databases from which it was
removed or destroyed and render accessible any documents that were disabled
or rendered inaccessible, unless otherwise ordered by the Court.
Nothing in this stipulation shall be deemed to
preclude any party from seeking and obtaining, on an appropriate showing, additional
protection with respect to the Confidential or Protected status of documents or other
discovery material, or relief from this stipulation with respect to particular material
Jurisdiction. This Court retains jurisdiction over this action to enforce this
Protection Order and to enter such further orders as are necessary regarding any
alleged violations of this Protection Order.
IT IS SO ORDERED,
June 9, 2015.
BY THE COURT:
Cheryl R. Zwart
United States Magistrate Judge
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I, the undersigned, do hereby acknowledge that I have read the Joint Stipulation
for Protection Order entered by the Court in the action of Hart v. Novartis Consumer
Health, Inc. and hereby covenant, warrant and agree: (1) to abide in full by its terms
regarding Confidential and/or Protected Information, as that term is defined in the Joint
Stipulation for Protection Order, which I am being provided, and that I will not disclose
or cause to be disclosed such Confidential and/or Protected Information to any person
not permitted to receive or otherwise access such information under the Joint
Stipulation for Protection Order, (2) that such Confidential and/or Protected Information
should be used only for purposes necessary for this litigation in the action of Hart v.
Novartis Consumer Health, Inc. and not for any other purpose, and (3) that upon
termination of this action, I shall return all documents designated as Confidential and/or
Protected and all copies and excerpts thereof, pursuant to the terms of the Protection
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