Kwasniewski et al v. sanofi-aventis U.S., LLC et al

Filing 62

PROTECTIVE ORDER Granting 61 Stipulated Protective Order of Confidentiality. Signed by Magistrate Judge Robert J. Johnston on 10/24/2012. (Copies have been distributed pursuant to the NEF - AC)

Case 2:12-cv-00515-GMN -RJJ Document 61

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MORRIS LAW GROUP
Steve Morris, Bar No. 1543
Email: [e-mail]
Robert McCoy, Bar No. 9121
Email: [e-mail]
Joni A. Jamison, Bar No. 11614
Email: [e-mail]
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
sanofi-aventis, U.S., LLC
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
JENNIFER KWASNIEWSKI,
individually and as Special
Administrator of the ESTATE OF
ANDREW A. KWASNIEWSKI;
TAYLOR L. KWASNIEWSKI; and
DYLAN A. KWASNIEWSKI, a
minor, by and through Jennifer
Kwasniewski, his mother and
guardian,
Plaintiffs,
v.
SANOFI-AVENTIS, U.S., LLC, a
Delaware limited liability company;
NADINE LEONE, MFT;
BEHAVIORAL HEALTHCARE
OPTIONS, INC., a Nevada
corporation,
Defendants.
________________________________

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Case No: 2:12-cv-00515-GMN-RJJ
STIPULATED PROTECTIVE
ORDER OF
CONFIDENTIALITY

This is a product liability case that plaintiffs allege involves
Ambien CR®, an FDA-approved prescription drug. Disclosure and
discovery in this proceeding will involve the production of confidential

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information that includes trade secrets, proprietary information, and other
proprietary research. Certain discovery will also contain confidential
information about third parties, such as social security numbers, names,
addresses, and protected health information, that sanofi-aventis is required
to collect as part of it research, development, and post-marketing
surveillance of prescription pharmaceuticals. To adequately protect this
information and expedite the flow of discovery material, Plaintiffs and the
Defendant sanofi-aventis have stipulated and the Court finds that good
cause is shown to protect this information from being disclosed. Therefore,
IT IS HEREBY ORDERED THAT the following provisions shall govern the
documents, materials or other things or portions thereof (and the
information contained therein) produced in discovery by any party to this
litigation.
By stipulating to this Protective Order (the "Order"), the parties
have agreed to be bound by its terms and to request its entry by the
presiding district or magistrate judge. It is hereby ORDERED as follows:
A.

DISCOVERY PHASE
1.

For purposes of this Order, the following definitions shall apply:

(a) the term "document" shall have the full meaning ascribed to it by the
Federal Rules of Civil Procedure ("Fed. R. Civ. P"); (b) the term "producing
party" shall be defined as any party or non-party who is required to produce
or provide materials or testimony and (c) the term "receiving party" shall
mean any party (including a party's counsel) or any consultant or other
person to whom confidential information is furnished.
2.

A producing party may designate as "CONFIDENTIAL" any

material the producing party believes in good faith constitutes or discloses
information that qualifies for protection pursuant to Fed. R. Civ. P. 26(c),
specifically information that is trade secret or other confidential research,
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development, or commercial information, and materials that are deemed
confidential under Federal Drug Administration ("FDA") regulations and
Health Insurance Portability and Accountability Act ("HIPAA") statutes and
regulations.
3.

The receiving party shall bear the reasonable cost of

reproduction of all documents, materials, or other things, whether in paper
or electronic format.
4.

Challenges to Designations or Redacted Information: Any party may

at any time challenge the redaction or the designation of information as
CONFIDENTIAL by providing written notice of its objection to the
designating party, or, in the case of a deposition, either on the record at a
deposition or in writing later. If, after a meet-and-confer process, the parties
cannot reach agreement, the challenging party may, on reasonable notice,
apply for an appropriate ruling from the Court. The disputed material shall
continue to be treated as confidential until the Court orders otherwise.
5.

No person or party subject to this Order shall distribute,

transmit, or otherwise divulge any material marked CONFIDENTIAL,
except in accordance with this Order, with the exception that this Protective
Order does not limit the producing party's ability to use its own confidential
data in the manner it sees fit.
6.

Use of Confidential Material Limited to this Action: Any document

or other material which is marked CONFIDENTIAL, or the contents
thereof, may be used by a party, or a party's attorney, expert witness,
consultant, or other person to whom disclosure is made, only for the
purpose of this action. Nothing contained in this Order shall prevent the use
of any document or the contents thereof, at any deposition taken in this
action.

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7.

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Access to Confidential Material: If a party or attorney wishes to

disclose any document or other material which is marked
CONFIDENTIAL, or the contents thereof, to any person actively, or
retained to, work on this action (e.g., expert witness, paralegal, associate,
consultant), the person making the disclosure shall do the following:
a.

Provide a copy of this Order to the person to whom

disclosure is made;
b.

Inform the person to whom disclosure is made that s/he is

bound by this Order;
c.

Require the person to whom disclosure is made to sign the

acknowledgment and receipt of this Order, attached as Exhibit A;
d.

Instruct the person to whom disclosure is made to return

or, in the alternative and with permission of the producing party, at the
conclusion of the case to destroy any document or other material which is
marked CONFIDENTIAL, including notes or memoranda made from
CONFIDENTIAL material;
e.

Maintain a list of persons to whom disclosure was made

and the CONFIDENTIAL materials which were disclosed to that person;
f.

At the conclusion of this action, gather the

CONFIDENTIAL materials, copies thereof, and related notes and
memoranda, and return them to the party or attorney who originally
disclosed them, or destroy them, providing a certificate of compliance with
the terms of this Protective Order.
8.

Redaction of Confidential Material: The parties recognize that

certain FDA, other governmental agencies, and certain federal statutes
require redaction of certain information prior to production of certain
information by Defendants and that Defendants will comply with those
requirements and redact such information as directed. Any party
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challenging information that has been redacted may do so in accordance
with Paragraph A.4 of this Protective Order, or otherwise in accordance
with the Federal Rules of Civil Procedure.
9.

Use of Confidential Material at Depositions: All transcripts and

exhibits shall be treated as if designated CONFIDENTIAL for a period of
thirty (30) days after the transcript is available from the court reporter.
Counsel for any party may designate during the deposition or during the
thirty day period after the transcript is available from the court reporter any
portion of the transcript as CONFIDENTIAL by denominating by page and
line, and by designating any exhibits, that are to be considered
CONFIDENTIAL pursuant to the criteria set forth in this Order. Such
designation shall be communicated to all parties. Transcript portions and
exhibits designated in accordance with this paragraph shall be disclosed
only in accordance with this Order. A party may challenge any
CONFIDENTIAL designations in accordance with the provisions of
Paragraph A.4 above.
10.

Inadvertent Failure to Properly Designate Confidential Material:

Inadvertent production of any document or information without a
designation of CONFIDENTIAL will not be deemed to waive a party's
claim to its confidential nature or estop said party from designating said
document or information as CONFIDENTIAL at a later date. Disclosure of
said document or information by another party prior to such later
designation shall not be deemed a violation of the provisions of this Order.
11.

Inadvertent Disclosure of Privileged Documents, "Clawback"

Procedure: Inadvertent production of documents or electronically stored
information ("ESI") (collectively "Inadvertently Produced Documents")
subject to work-product or attorney-client privilege, or other legal privilege
protecting information from discovery, shall not constitute a waiver of the
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privilege, provided that the producing party shall notify the receiving party
in writing as set forth herein. In the event that a party inadvertently
produces documents or ESI subject to a claim of privilege, the producing
party shall, within ten (10) days of the discovery of the inadvertent
disclosure, notify the other party in writing of the inadvertent disclosure.
The producing party may, in the notice, request a "clawback" of the
inadvertently disclosed material. The party receiving such clawback notice
shall immediately and diligently act to retrieve the inadvertently produced
documents, and all copies, including any loaded to databases, and return
them to the producing party or destroy them as agreed between the parties.
All notes or other work product of the receiving party reflecting the contents
of such materials shall be destroyed and not used.
12.

If the receiving party elects to file a motion as set forth below, the

receiving party, subject to the requirements below, may retain possession of
the Inadvertently Produced Documents as well as any notes or other work
product of the receiving party reflecting the contents of such materials
pending the resolution by the Court of the motion below, but shall segregate
and not use them pending resolution of the motion. If the receiving party's
motion is denied, the receiving party shall promptly comply with the
immediately preceding provisions of this paragraph. No use shall be made
of such Inadvertently Produced Documents during depositions or at trial,
nor shall they be disclosed to anyone who was not given access to them
prior to the request to return or destroy them unless otherwise ordered by
the Court.
The party receiving such Inadvertently Produced Documents may,
after receipt of the producing party's notice of inadvertent production, move
the Court to dispute the claim of privilege.

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Case 2:12-cv-00515-GMN -RJJ Document 61

B.

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SUBMISSION OF CONFIDENTIAL MATERIAL
1.

If any party or attorney wishes to file with the Court a pleading,

motion, or memorandum that contains CONFIDENTIAL material, whether as
an exhibit or excerpted in the motion, the filing party or attorney shall give
the producing party reasonables notice prior to filing and provide copies of
the documents or excerpts containing CONFIDENTIAL material that it
intends to file with the Court. If the producing party decides that the
material should be filed under seal, it will notify the filing party within
seven days of receiving notice of the filing party's intent to file
CONFIDENTIAL material. The filing party shall file the motion and
CONFIDENTIAL material in sealed envelopes (in accordance with LR 10-5)
with the caption, title of court, name of the case, an indication of nature of
the contents, the word "Confidential," and the following statement:
This envelope containing documents which 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 this
Court and there inspect the contents hereof, without
order of the Court, and upon completion of each
inspection by counsel, the envelope containing such
documents shall be resealed.
The producing party will then be responsible for filing a motion for leave to
seal the documents to be filed concurrently or shortly after the filing of the
motion, pleading, or memorandum.
C.

POST-DISCOVERY PHASE
1.

If any party or attorney wishes to use as an exhibit or as testimonial

evidence at a hearing or trial, any CONFIDENTIAL material, such party must
provide reasonable notice to the producing party of the intended use of
such information. The parties shall then attempt to resolve the matter of
continued confidentiality by either (a) removing the CONFIDENTIAL

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marking, (b) creating a mutually acceptable redacted version that suffices
for purposes of the case, or (c) conferring about methods to avoid or limit
public disclosure of such information during testimony. If an amicable
resolution proves unsuccessful, the parties may present the issue to the
Court for resolution.
2.

Survival of Protective Order: Throughout and after the conclusion

of this litigation, including any appeals, the restrictions on communication
and disclosure provided for herein shall continue to be binding upon the
parties and all other persons to whom CONFIDENTIAL material has been
communicated or disclosed pursuant to the provisions of this Order or any
other order of the Court.
3.

Return or Destruction of Confidential Material Upon

Termination of Litigation: Within sixty (60) days after the final termination
of this action or upon such time as the parties agree, each party, upon
request of the other party, shall either return to the producing party, or
destroy, all CONFIDENTIAL material designated by any other party
(including any such material disclosed to third persons), except for any
attorneys' work product for the party returning the material, and shall
provide confirmation in writing to opposing counsel if such materials are
destroyed.
4.

Modification of this Order: Nothing in this Order shall prevent

any other party from seeking amendments broadening or restricting the
rights of access to or the use of CONFIDENTIAL material or otherwise
modifying this Order; and this Order may be amended without leave of the
Court by the agreement of the undersigned attorneys for the parties in the
form of a Stipulation that shall be filed in this case.

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MURDOCK & ASSOCIATES,
CHTD.

FRED KENNEDY

By_/s/ Robert E. Murdock _______
Robert E. Murdock
520 South Fourth Street
Las Vegas, Nevada 89101

By_/s/ Fred Kennedy____________
Fred Kennedy
628 South Casino Center Blvd.
Suite 310
Las Vegas, Nevada 89101

ECKLEY M. KEACH, CHTD.
Eckley M. Keach
520 South Fourth Street
Las Vegas, Nevada 89101

Attorneys for Defendant Nadine
Leone, MFT
MORRIS LAW GROUP

Attorneys for Plaintiff
LEWIS BRISBOIS BISGAARD &
SMITH, LLP

By_/s/ Robert McCoy____________
Steve Morris
Robert McCoy
Joni A. Jamison
900 Bank of America Plaza
300 South Fourth Street
By_/s/ Keith A. Weaver___________
Keith A. Weaver
Las Vegas, Nevada 89101
400 South Fourth Street
Suite 500
Attorneys for Defendant sanofiLas Vegas, Nevada 89101
aventis, U.S., LLC
Attorneys for Defendant Behavioral
Healthcare Options, Inc.
ORDER
IT IS SO ORDERED.
_______________________________
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT JUDGE
October 24, 2012
Dated:_________________________

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EXHIBIT A
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
JENNIFER KWASNIEWSKI,
individually and as Special
Administrator of the ESTATE OF
ANDREW A. KWASNIEWSKI;
TAYLOR L. KWASNIEWSKI; and
DYLAN A. KWASNIEWSKI, a
minor, by and through Jennifer
Kwasniewski, his mother and
guardian,
Plaintiffs,
v.
SANOFI-AVENTIS, U.S., LLC, a
Delaware limited liability company;
NADINE LEONE, MFT;
BEHAVIORAL HEALTHCARE
OPTIONS, INC., a Nevada
corporation,
Defendants.
________________________________

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Case No: 2:12-cv-00515-GMN-RJJ
AGREEMENT TO BE BOUND
BY PROTECTIVE ORDER

I have read and understand the Protective Order entered in
Kwasniewski v. Sanofi-Aventis U.S., LLC, Case No. 2:12-cv-00515-GMN-RJJ (D.
Nev.), and I agree to be bound by its terms. Specifically, and without
limitation upon such terms, I agree not to use or disclose any Confidential
material made available to me other than in accordance with this Protective
Order.

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I hereby agree to submit to the jurisdiction of the United States
District Court for the District of Nevada for enforcement of the undertaking
I have made herein.
Dated:________________
_______________________
SIGNED NAME
________________________
PRINTED NAME

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