Epstein v. GlaxoSmithKline,LLC
Filing
24
PROTECTIVE ORDER - Court has reviewed the proposed stipulation 23 and finds that it should be granted.Ordered by Magistrate Judge Michael D. Nelson. (CCB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GARY A. EPSTEIN,
Plaintiff,
8:17CV264
vs.
STIPULATED PROTECTIVE ORDER
GLAXOSMITHKLINE, LLC,
Defendant.
This matter is before the Court on the Stipulation for Protective Order (Filing No. 23) filed
by the parties. The Court has reviewed the proposed stipulation, and finds that it should be granted.
Accordingly,
IT IS ORDERED: The Stipulation for Protective Order (Filing No. 23) is approved, and the
following Stipulated Protective Order shall apply in this case:
Plaintiff Gary A. Epstein (“Epstein”) and Defendant GlaxoSmithKline, LLC (“GSK”)
(Epstein and GSK are hereafter collectively referred to as the “Parties”), by and through their
respective undersigned counsel, hereby stipulate and agree to the request for, and entry of, the
following Protective Order:
1.
In this action, the Parties are seeking Confidential Information (as defined in
Paragraph 2 below). The Parties also anticipate seeking additional Confidential Information during
discovery and that there will be questioning concerning Confidential Information in the course of
depositions.
The Parties assert that the need for this Protective Order also applies to any
information or materials produced by a non-party as a result of discovery subpoenas or other
requests. The Parties have entered into this Stipulation and request the Court enter this Protective
Order for the purpose of preventing the disclosure and use of Confidential Information by any Party
or non-party except as set forth herein. The terms of this Protective Order shall apply to any
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information or materials produced by any Party or non-party as part of discovery in this action.
Each and every attorney with the law firms representing the Parties in this case shall be deemed to
be subject to this Protective Order and shall be deemed to have actual knowledge of the restrictions
herein.
2.
Definition of “Confidential Information.” Under the terms of this Protective Order,
“Confidential Information” means any document, file, electronic material portions of files,
transcribed testimony, or responses to discovery requests, including any extract, abstract, chart,
summary, note, or copy made therefrom – not made available to the public – and designated by one
of the Parties or a non-party (in the manner provided in Paragraph 3 below) as containing or
comprising confidential or sensitive information or other trade secrets or proprietary business
information. In connection with this Stipulation and Protective Order, Confidential Information
shall constitute one of two categories of information or materials, as follows:
a.
“Confidential Material” shall be documents, information or materials the
release of which could harm one of the Parties, including but not limited to,
medical and financial information related to Epstein, non-public financial or
business/commercial records, personnel records of non-parties, internal
personnel policies and procedures of GSK and any affiliate entity, and other
information which is private in nature and may have the effect, if not deemed
to be confidential, of embarrassing, humiliating or otherwise invading the
privacy of a Party, and could potentially cause significant public and private
harm, humiliation and exposure to one or both of the Parties. Such
information or materials may only be so designated if they are not otherwise
publicly available.
b.
“Confidential – Attorneys’ Eyes Only” shall be information or materials
which relates to highly sensitive financial, personnel and proprietary
information for which any unprotected disclosure would harm the
commercial or business interests of the designating Party or the privacy
interests of a non-party. Such information or materials may only be
designated if they are not otherwise publicly available.
3.
Designation of “Confidential Information.”
Where any kind of Confidential
Information is produced, provided or otherwise disclosed by a Party or a non-party in response to
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any discovery request or subpoena, including by means of entry onto land or premises or by
inspection of books, records, documents, or tangible things, such Confidential Information will be
designated in the following manner:
a.
By imprinting the words “Confidential – Subject to Stipulated Protective
Order” or “Confidential – Attorneys’ Eyes Only -- Subject to Stipulated
Protective Order,” as appropriate, on at least the first page or cover of any
document produced;
b.
By imprinting the words “Confidential – Subject to Stipulated Protective
Order” or “Confidential – Attorneys’ Eyes Only – Subject to Stipulated
Protective Order,” as appropriate, next to or above any response to a
discovery request; and
c.
With respect to transcribed testimony, either during the deposition on the
record, or by giving written notice to opposing counsel sufficient to designate
such portions as “Confidential” or “Confidential – Attorneys’ Eyes Only,” as
appropriate, no later than twenty (20) calendar days after the entry of this
Protective Order or receipt of the transcribed testimony, whichever is earlier.
During a deposition, the deponent or his counsel, or any other counsel of
record present at the deposition, may give notice on the record that testimony
about to be given is deemed “Confidential” or “Confidential – Attorneys’
Eyes Only,” as appropriate. If during the course of a deposition, a document
or other material that has previously been designated “Confidential” or
“Confidential – Attorneys’ Eyes Only” is used, then that particular portion of
the deposition shall be deemed to be subject to the same level of protection
accorded to the designated document without further need of any written
designation of the deposition transcript by the designating party.
4.
Restrictions on Confidential Information. All Confidential Information provided by
a Party or a non-party in response to a discovery request, in connection with a deposition, or as
transcribed testimony shall be subject to the following restrictions:
a.
“Confidential Material”:
i.
“Confidential Material” shall be used by the receiving Party only for
the purpose of this litigation and not for any business or other purpose
whatsoever.
ii.
“Confidential Material” shall not be communicated or disclosed by
the receiving Party’s counsel or the receiving Party in any manner,
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either directly or indirectly, to anyone except for purposes of this
litigation.
iii.
“Confidential Material” may only be disclosed or communicated to
the following persons:
(a)
(b)
The Parties’ in-house counsel;
(d)
Graphics or design services firms retained by counsel for a
Party for purposes of preparing demonstrative or other
exhibits for deposition, trial or other proceedings;
(e)
Independent document reproduction services or document or
video recording and retrieval services;
(f)
Non-technical jury or trial consulting services retained by
counsel for a Party;
(g)
Expert witnesses retained or consulted by the Parties in
connection with this litigation;
(h)
Witnesses;
(i)
A mediator agreed upon by the parties; and
(j)
b.
The Parties’ outside counsel of record in this action and any
regular or temporary employees of such counsel to whom it is
necessary that the information or material be shown for
purposes of this litigation;
(c)
iv.
The Parties and employees or agents of the Parties;
The finder of fact or concluder of law.
Undertaking: Confidential Materials may be disclosed only to the
persons listed in Paragraph 4.a.iii, subparagraphs (d), (e), (f), (g), (h),
and (i) only after such person(s) have executed a declaration in the
form attached as Exhibit A.
“Confidential – Attorneys’ Eyes Only” Material:
i.
“Confidential – Attorneys’ Eyes Only Material shall be used by the
receiving Party’s Attorneys’ only for the purpose of this litigation and
may not be used for any other purpose outside the reasonable conduct
of this case.
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ii.
5.
The receiving Party’s counsel shall ensure that the information is
disclosed or communicated only to persons as designated above in
Paragraph 4.a.iii, subparagraphs (b) and (c).
“Confidential –
Attorneys’ Eyes Only” may be disclosed to those persons listed in
Paragraph 4.a.iii, subparagraphs (g) and (i) only after such person(s)
have executed a declaration in the form attached as Exhibit B.
Use of Confidential Information in Court Proceedings. In the event any Confidential
Information is used in any court filing or legal proceeding, including, but not limited to, its use at
trial, it shall not lose its confidential status as between the Parties through such use.
Any
memorandum, brief, or other pleading that contains Confidential Information in the body of the
document shall be prominently labeled on the applicable pages with the following legend:
“Contains Confidential Information Subject To Protective Order.” All Confidential Information
filed with the Court, and all portions of pleadings, motions or other papers filed with the Court that
disclose any Confidential Information, shall be filed under seal pursuant to any rules or orders
pertaining to the filing of information and documents under seal.
6.
Continuing Duty.
The termination of this action shall not relieve counsel, the
Parties, or other persons obligated hereunder from their responsibility to maintain the confidentiality
of Confidential Information pursuant to this Protective Order, and the Court shall retain continuing
jurisdiction to enforce the terms of this Protective Order. The Parties agree that in no event shall the
obligations of this Protective Order continue beyond two years from the final disposition of this
matter, by order, settlement, or otherwise.
7.
Protective Order Not Admission/No Waiver of Challenge to Confidential
Designation. By agreeing to the entry of this Protective Order, the Parties adopt no position as to
the authenticity or admissibility of documents produced subject to it or waive their right to
challenge the “Confidential Material” or “Confidential – Attorneys’ Eyes Only” designation at any
point during the course of this litigation. Furthermore, by producing or receiving information or
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material designated as “Confidential Material” or “Confidential – Attorneys’ Eyes Only” or by
otherwise complying with the terms of this Protective Order, such conduct shall not be construed as
an admission as to the relevance, authenticity, foundation or admissibility of any document,
material, transcript or other information.
8.
Obligations After Final Disposition. The provisions of this Protective Order shall,
absent written permission of the producing Party, or further order of the Court, continue to be
binding throughout and after the conclusion of this action, including any appeals or remands. Upon
final determination of this action, including all appeals, each party should be required to destroy
documents or materials containing Confidential Information or return it to the party or non-party
that produced it.
9.
No Bar to Seeking Further Relief. Nothing in this Protective Order shall preclude
any Party from filing a motion seeking further or different protection from the Court or from filing a
motion with respect to the manner in which Confidential Information shall be treated at trial.
10.
Treatment of Confidential Information at Trial.
In the event any Confidential
Information is to be used in any court proceeding or any appeal therefrom, counsel for the Parties
shall confer on such procedures as are necessary to protect the confidentiality of any documents,
information, and transcripts used in the course of any such proceeding, and shall move the Court to
incorporate such procedures.
11.
Examination of Witnesses Regarding “Confidential Information.” Any person may
be examined as a witness at trial or during a deposition concerning any information or material that
has been designated as “Confidential Information” provided that the witness executes a declaration
in the form attached as Exhibit A prior to receipt of “Confidential Information.” The witness shall
not keep any “Confidential Information.” During such examination, any such witness may be
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shown information or material designated as “Confidential Information” which appears on its face
or from other documents or testimony to have been received or authored by that witness. Whenever
a person appears from the face of a document that has been designated as “Confidential
Information” to have been the author or lawful recipient of that document, such person may be
shown, but not permitted to retain custody of, that specific document shown to them despite the
restrictions on access set out in Paragraph 4 of this Protective Order.
12.
Inadvertent Production of Undesignated/Misdesignated Confidential Information. If
a Party inadvertently produces Confidential Information without marking it as such, it may be
disclosed to others until the receiving Party becomes aware of the error, unless it reasonably
appears from the face of the material that it contains nonpublic, confidential, proprietary,
commercially sensitive, or trade secret information of the producing Party. As soon as the receiving
Party becomes aware of the inadvertent production, the information must be treated as if it had been
timely and correctly designated under this Protective Order, and the receiving Party must endeavor
in good faith to obtain all copies of the document which it distributed or disclosed to persons not
authorized to have access to such information, as well as any copies made by such persons.
13.
Inadvertent Production of Privileged Materials. If a Party inadvertently produces a
document that it later discovers to be a privileged document, the production of that document shall
not be deemed to constitute a waiver of any applicable privileges. In such circumstances, if the
receiving Party discovers such inadvertent disclosure, the receiving Party must immediately notify
the producing Party and return or confirm destruction of the privileged materials. Within five (5)
business days of receiving such notification, the receiving Party shall return or confirm destruction
of all such materials, including any summaries thereof. Such return or confirmation of destruction
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shall not preclude the receiving Party from seeking to compel production of the materials for
reasons other than its inadvertent production.
14.
Binding Effect of Protective Order Before Entry by Court. The Parties agree to be
bound by the terms of this Stipulation and Protective Order pending its entry by the Court, or
pending entry of an alternative thereto. Any violation of the terms of this Stipulation prior to its
entry, or prior to the entry of an alternative order, shall be subject to the same sanctions and
penalties as if this Stipulation had been entered as an order of the Court.
15.
Obligations Under Subpoena in Other Action. If a Party is (a) subpoenaed in another
action, (b) served with a demand in another action to which it is a party, or (c) served with any other
legal process by one not a Party to this action, seeking Confidential Information which it received
from the other Party, the Party so served shall give prompt, written notice to the producing Party, by
hand or electronic service, within ten (10) business days of its receipt of such subpoena, demand, or
legal process and in sufficient time for the producing Party to interpose and objection before any
production is made.
Dated this 21st day of February, 2018.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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EXHIBIT A – “Confidential Material”
DECLARATION OF _____________________
___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, Gary A. Epstein v. GlaxoSmithKline,
LLC, Civil Action No. 8:17-cv-264 in the United States District Court for the District of Nebraska, a
copy of which is attached to this Declaration.
2.
I have been informed by ______________________, Esq., counsel for
___________________, that I will be given access to information, documents or other materials
that have been defined as “Confidential Material” under the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any person
or recording device any “Confidential Material,” or any other Confidential Information, shown or
told to me except as authorized in the Protective Order. I will not use the Confidential Information
for any purpose other than this litigation. I will not use the Confidential Information for any
commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the Court in the civil action referenced above.
5.
I will abide by the terms of the Protective Order.
(Signature)
(Print or Type Name)
Address:
Telephone No.: (
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)
EXHIBIT B – “Confidential – Attorneys’ Eyes Only” Material
DECLARATION OF _____________________
___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, Gary A. Epstein v.
GlaxoSmithKline, LLC, Civil Action No. 8:17-cv-264 in the United States District Court for the
District of Nebraska, a copy of which is attached to this Declaration.
2.
I have been informed by ____________________, Esq., counsel for
____________________, that I will be given access to information, documents or other materials
that have been defined as “Confidential Material” or “Confidential – Attorneys’ Eyes Only” and
which were produced by the opposing Party subject to the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any
person or recording device any “Confidential Material” or “Confidential – Attorneys’ Eyes
Only” Material or any other Confidential Information, shown or told to me except as authorized
in the Protective Order. I will not use the Confidential Information for any purpose other than
this litigation. I will not use the Confidential Information for any commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the Court in the civil action referenced above.
5.
I will abide by the terms of the Protective Order.
(Signature)
(Print or Type Name)
Address:
Telephone No.: (
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)
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