Oberembt v. C.R. Bard, Inc.

Filing 24

STIPULATED PROTECTIVE ORDER - THEREFORE, FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the parties' Joint Motion for Entry of Stipulated Protective Order (Filing No. 23 ) is granted. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JULIE A. OBEREMBT,
Plaintiff,
v.
C.R. BARD, INC.
Defendant.

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8:16CV171
STIPULATED
PROTECTIVE ORDER

The parties have stipulated to the entry of this Protective Order in regard to certain
discovery material to be made available by the defendant, C. R. Bard, Inc. (“Bard”). This
discovery material includes trade secrets and confidential, proprietary and non-public documents
and information, the public disclosure of which could be detrimental to the interests of Bard
and/or related corporate entities; documents which may contain information that is personal and
confidential to third parties, including individuals; and documents and information subject to a
claim of privilege or immunity from discovery (including but not limited to attorney-client
privilege, work product immunity, and immunities created by federal or state statute or
regulation). The parties agree that the above-described documents and information, including
electronically stored information, should be given the protection of an order of this Court to
prevent irreparable harm through disclosure to persons other than those persons involved in the
prosecution or defense of this litigation.
THEREFORE, FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED,
ADJUDGED, and DECREED that the parties’ Joint Motion for Entry of Stipulated Protective
Order (Filing No. 23) is granted, and the following Protective Order shall govern discovery in
the above-captioned matter, as follows:

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1.

The following definition shall apply to this Order: A “stamped

confidential document” means any document, including any document produced electronically,
which bears the legend (or which shall otherwise have had the legend recorded upon it or upon
the medium in which it is produced, in a way that brings its attention to a reasonable examiner)
“CONFIDENTIAL” or “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” to signify
that it contains information subject to protection under Federal Rule of Civil Procedure
26(c)(1)(G), or federal or state statute or regulation. For purposes of this Order, the term
“document” means all written, recorded, electronically stored, or graphic material produced or
created by a party or any other person, whether produced pursuant to the Federal Rules of Civil
Procedure, subpoena, by agreement, or otherwise. Interrogatory answers, responses to requests
for admission, deposition transcripts and exhibits, pleadings, motions, affidavits, and briefs that
quote, summarize, or contain materials entitled to protection may be accorded status as stamped
confidential documents, but, to the extent feasible, shall be prepared in such a manner that
stamped confidential documents are bound separately from those not entitled to protection.
2.

Stamped confidential documents and their contents, as well as copies,

summaries, notes, memoranda and computer databases relating thereto, shall be and remain
confidential, and shall not be disclosed in any fashion, nor be used for any purpose other than the
analysis and preparation for trial of this action, except with the prior written consent of the party
or other person originally designating a document as a stamped confidential document, or as
hereinafter provided under this Order. Stamped confidential documents produced in hard-copy
form shall not be digitized or otherwise put in computer readable format (such as PDF format) by
the person receiving the documents. Stamped confidential documents produced in electronic
form shall not be converted to any other electronic form and shall not be copied onto any hard

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drive, disk, back-up tape or any other medium that would allow the electronic stamped
confidential document to be disclosed to anyone other than the person receiving the document.
3.

Notwithstanding paragraph 2, stamped confidential documents may be

disclosed to counsel of record for the parties to this action who are actively engaged in the
conduct of this litigation; to the partners, associates, secretaries, paralegal assistants, and
employees of such an attorney to the extent reasonably necessary to render professional services
in the litigation; to persons with prior knowledge of the documents or the confidential
information contained therein, and their agents; and to court officials involved in this litigation
(including court reporters, persons operating video recording equipment at depositions, and any
special master appointed by the Court). Subject to the provisions of subparagraph 3(c), such
documents may also be disclosed:
(a)

to Outside Counsel (herein defined as any attorney at the parties’

outside law firms) and relevant in-house counsel for the parties;
(b)

to any person designated by the Court in the interest of justice,

upon such terms as the Court may deem proper; and
(c)

to persons noticed for depositions or designated as trial witnesses

to the extent reasonably necessary in preparing to testify; and to outside
consultants or experts retained for the purpose of assisting counsel in the
litigation; provided, however, that in all such cases, except as noted in paragraph
3(c) below, the individual to whom disclosure is to be made has signed a
Confidentiality Agreement, the form of which is attached hereto as Exhibit A,
containing —

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(1)

a recital that the signatory has read and understands this

Order and will abide by it;
(2)

a recital that the signatory understands that unauthorized

disclosures of stamped confidential documents and their substance
constitute contempt of court; and
(3)

a statement that the signatory consents to the exercise of

personal jurisdiction by this Court for purposes of enforcing this Order.
The attorney disclosing stamped confidential documents pursuant to this
subparagraph shall retain a copy of all signed Confidentiality Agreements in his
or her file and shall produce the same to opposing counsel in the event there is an
issue raised about a person’s execution of the Confidentiality Agreement and/or
compliance with this Protective Order.
(d)

Each outside consultant or expert retained for the purpose of

assisting counsel in this litigation to whom disclosure is made pursuant to
paragraph 3(c) above must sign a Confidentiality Agreement, the form of which is
attached hereto as Exhibit A. That Agreement then must be returned to plaintiffs
counsel who shall retain any such Agreements during the pendency of the
litigation and must certify in writing to Bard’s counsel that (1) a disclosure was
made to a consulting expert and (2) the consulting expert signed and returned the
Confidentiality Agreement.
(e)

Before disclosing stamped confidential documents to any person

listed in subparagraph 3(b) or 3(c) who is a customer or competitor (including
employees or consultants of either) of the party that so designated the document,

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the party wishing to make such disclosure shall give at least 15 days advance
notice in writing to the counsel who designated such information as confidential,
stating the names and addresses of the person(s) to whom the disclosure will be
made, identifying with particularity the documents to be disclosed, and stating the
purposes of such disclosure. If, within the 15-day period, a motion is filed
objecting to the proposed disclosure, the disclosure shall not be made unless and
until the Court has denied such motion. The Court will deny the motion unless the
objecting party shows good cause why the proposed disclosure should not be
permitted.
(1)

As used in this paragraph 3(e), the term “customer” means

any direct purchaser of products from any defendant, or any regular
indirect purchaser of defendants. The term “customer” is not meant to
include physicians.
(2)

As used in this paragraph 3(e), the term “competitor”

means any manufacturer or seller of medical devices.
4.

Each person executing the Confidentiality Agreement submits to the

jurisdiction of this Court for the purposes of enforcement of this Order, either prior to or
following the completion of this action. Jurisdiction of this action is to be retained by this Court
after final determination for purposes of enabling any party or persons affected by this Order to
apply to the Court at any time for such direction or further decree as may be appropriate for the
construction or enforcement of this Order or for such additional relief as may become
appropriate.

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5.

Nothing in this Order shall preclude the disclosure by a party of stamped

confidential documents that it has produced.
6.

Nothing in this Order shall preclude the disclosure by any party of

publicly available documents or information.
7.

Stamped confidential documents included as part of any pleading or

memorandum shall be filed as a sealed document pursuant to Rule 7.5 of the Local Rules for the
United States District Court for the District of Nebraska. If any documents have to be submitted
to the Clerk or the Court in hard copy form, they shall be placed in sealed envelopes or other
containers on which shall be endorsed the title of this action, an indication of the nature of the
contents, the word “CONFIDENTIAL” and the following statement:
This envelope containing documents that are filed in this case by
[name of party] is not to be opened nor the contents thereof to be
revealed except by court order; provided, however, that counsel of
record in this case may open this envelope in the office of the
Clerk of this Court and there inspect the contents hereof, without
order of Court, and upon completion of each inspection by counsel,
the envelope containing such documents shall be resealed.
8.

Persons with knowledge may be deposed regarding stamped confidential

documents or the subject matter thereof. Only the parties and persons described in paragraph 3,
including the court reporter and the witness, shall be present at such depositions. Transcripts of
said depositions shall be treated as stamped confidential documents in accordance with this
Order.
9.

If, at the time of trial, counsel for any of the parties attempts to introduce

into evidence or use in cross-examination any stamped confidential documents, whether as part
of a document or deposition testimony, counsel for either party may request the Court to preserve
the confidentiality of that stamped confidential document as the Court deems appropriate.

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10.

In the event that another party disagrees with a party’s designation of any

document or information as confidential, the objecting party shall advise counsel for the
designating party, in writing, of the objection and identify the document or item with sufficient
specificity to permit identification. Within 20 days of receiving the objection, the designating
party shall advise the objecting party’s counsel whether the designating party will change the
designation of the document or item. If this cannot be resolved between the parties, then the
dispute will be presented to the Court by motion or otherwise. During the pendency of any such
motion, the designated document or item shall continue to be treated as a stamped confidential
document and subject to the provisions of this Order. On the hearing of any such motion, the
burden shall be on the designating party to establish that the designated document or item should
be deemed confidential.
11.

Nothing in this Order shall prevent or otherwise restrict counsel from

rendering advice to their clients in this litigation and, in the course thereof, relying generally on
examination of stamped confidential documents; provided, however, that in rendering such
advice and otherwise communicating with such client, counsel shall not make specific disclosure
of any item so designated except pursuant to the procedures of paragraphs 3(c) and 3(d).
12.

If another court or an administrative agency subpoenas or orders

production of stamped confidential documents which a party has obtained under the terms of this
Order, such party shall promptly notify the party or other person who designated the document as
confidential of such subpoena, order or other legal process.
13.

If a producing party inadvertently or unintentionally produces to a

receiving party any document or information without marking it as a stamped confidential
document pursuant to paragraph 1, the producing party shall, within 30 days of the discovery of

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the inadvertent production, give notice to the receiving party in writing and thereafter the
receiving party shall treat the document as a stamped confidential document. Such inadvertent or
unintentional disclosure shall not be deemed a waiver in whole or in part of the producing party’s
claim of restriction either as to specific documents and information disclosed or on the same or
related subject matter.
14.

If a producing party inadvertently or unintentionally produces to a

receiving party any documents or information subject to a claim of privilege or immunity from
discovery (including but not limited to attorney-client privilege, work product immunity, and
immunities created by federal or state statute or regulation), the producing party shall, within 30
days of the discovery of the inadvertent production, give notice to the receiving party in writing
of the producing party’s claim of privilege or immunity from discovery. Thereafter, the receiving
party shall immediately return to the producing party the original and all copies of the restricted
materials, including copies of the restricted materials disseminated to other persons by the
receiving party. The receiving party will be deemed to have notice that material is restricted if
the party reasonably should recognize the material is privileged or protected from discovery, or
upon written notice by the producing party. Such inadvertent or unintentional disclosure shall not
be deemed a waiver in whole or in part of the producing party’s claim of privilege or immunity
from discovery either as to specific documents and information disclosed or on the same or
related subject matter. In the event that the receiving party disagrees with the producing party’s
claim of privilege or immunity from discovery, then the receiving party shall notify the
producing party within five (5) business days of receipt of the producing party’s written notice of
claim of privilege, and shall set forth the precise grounds upon which the receiving party’s
position rests. If the parties cannot resolve the matter, then the dispute will be presented to the

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Court by motion or otherwise. During the pendency of any such motion, the receiving party shall
not copy, distribute, or otherwise use in any manner the disputed documents or information, and
shall instruct all persons to whom the receiving party has disseminated a copy of the documents
or information that the documents or information are subject to this Order and may not be
copied, distributed, or otherwise used pending the motion and further notice from the Court.
15.

The provisions of this Order shall not terminate at the conclusion of this

lawsuit. Within 90 days after final conclusion of all aspects of this litigation, stamped
confidential documents and all copies of same (other than exhibits of record) either shall be
destroyed or returned to the producing party, except as may be required by applicable law. In the
event that stamped confidential documents are produced in electronic form, or are put into
electronic form by the receiving party with the consent of the providing party, then the receiving
party shall delete all electronic copies of stamped confidential documents from all computer
systems, disks, and other electronic medium and devices. All counsel of record shall make
certification of compliance herewith and shall deliver the same to counsel for the party who
produced the documents not more than 120 days after final termination of this litigation.
16.

The attorneys of record are responsible for employing reasonable

measures to control and record, consistent with this Order, duplication of, access to, and
distribution of stamped confidential documents, including abstracts and summaries thereof. No
duplications of stamped confidential documents shall be made except by counsel to provide
working copies and for filing in Court under seal pursuant to paragraph 7.
17.

The Clerk may return to counsel or destroy any stamped confidential

documents in its possession.

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18.

It is expressly understood by and between the parties that in granting

access to or producing stamped confidential documents in this litigation, Bard shall be relying
upon the terms and conditions of this Order.

DATED: September 30, 2016.
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge

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