Phillips v. C.R. Bard, Inc. et al

Filing 85

PROTECTIVE ORDER re 78 MOTION for Protective Order. Signed by Magistrate Judge William G. Cobb on 3/20/13. (Copies have been distributed pursuant to the NEF - JC)

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 1 of 18

1
2
3
4
5

Kelly A. Evans, Nevada Bar No. 7691
Jay J. Schuttert, Nevada Bar No. 8656
Justin S. Hepworth, Nevada Bar No. 10080
SNELL & WILMER L.L.P.
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

6
7
8
9

James F. Rogers, Esq. (Pro Hac Vice)
Nelson Mullins Riley & Scarborough, LLP
Meridian, 17th Floor
1320 Main Street
Columbia, SC 29201
Telephone: [phone]
Email: [e-mail]

10

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11
12
13
14
15

Richard B. North, Jr., Esq. (Pro Hac Vice)
Matthew B. Lerner, Esq. (Pro Hac Vice)
Taylor Tapley Daly, Esq. (Pro Hac Vice)
Nelson Mullins Riley & Scarborough, LLP
Atlantic Station
201 17th Street NW, Suite 1700
Atlanta, GA 30363
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

16
17

Attorneys for Defendants
C.R. BARD, INC. and
BARD PERIPHERAL VASCULAR, INC.

18
UNITED STATES DISTRICT COURT
19
DISTRICT OF NEVADA
20
21

KEVIN PHILLIPS, an individual,
Plaintiff,

22
23
24
25

Case No. 3:12-cv-00344-RCJ-WGC

PROTECTIVE ORDER
[PROPOSED] PROTECTIVE ORDER

vs.
C.R. BARD, INC., a foreign corporation,
BARD PERIPHERAL VASCULAR, INC., an
Arizona corporation, and DOES 1 through 100
inclusive,

26

Defendants.

27
///
28

16821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 2 of 18

1

Upon the defendants’ motion, and good cause appearing, IT IS HEREBY ORDERED

2

that, during disclosure and discovery proceedings in this action, certain documents and

3

information have been or may be requested, sought, produced, or exhibited by, between, and

4

among the parties to this action, which relate to or contain “confidential information” that consists

5

of the parties’ trade secrets; confidential research, development, or proprietary commercial

6

information; or confidential and private psychiatric, psychological, medical condition, and/or

7

employment information; which is entitled to protection from disclosure outside this litigation

8

and is subject to a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure;

9

and

Snell & Wilmer

WHEREAS, the defendants to this action, through their counsel, have established that a

11
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

10

protective order preserving the confidentiality of certain documents and information should be

12

entered by the Court.

13
14

IT IS FURTHER ORDERED as follows:
I.

15

Definitions
1.

Confidential Information. “Confidential Information” is defined herein as any

16

information that constitutes, reflects, discloses, or contains: (1) a “trade secret or other

17

confidential research, development, or commercial information” that is suitable for protection

18

under Federal Rule of Civil Procedure 26(c)(7); and (2) information that may be protected from

19

disclosure under a party’s constitutional right of privacy such as confidential and private

20

psychiatric, psychological, medical condition and/or employment information.

21

2.

Trade Secret. A party, in designating information “Confidential” because it

22

contains a “Trade Secret,” shall designate only information that meets the definition of trade

23

secret contained in 18 U.S.C.A. § 1839 (West):

24

the term “trade secret” means all forms and types of financial, business, scientific,
technical, economic, or engineering information, including patterns, plans,
compilations, program devices, formulas, designs, prototypes, methods,
techniques, processes, procedures, programs, or codes, whether tangible or
intangible, and whether or how stored, compiled, or memorialized physically,
electronically, graphically, photographically, or in writing if-(A) the owner thereof has taken reasonable measures to keep such

25
26
27
28

-216821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 3 of 18

1

3

information secret; and
(B) the information derives independent economic value, actual or
potential, from not being generally known to, and not being readily ascertainable
through proper means by, the public

4

3.

2

This Action. “This Action” means Kevin Phillips v. C. R. Bard, Inc., et al., Case

5

No. Civil Action No. 3:12-cv-00344-RCJ-WGC, pending in the United States District Court,

6

District of Nevada.

7

II.

Information Within The Scope of The Protective Order
4.

8

This Protective Order shall govern all hard copy and electronic materials, the

Action, including all copies, excerpts, summaries, or compilations thereof, whether revealed in a

11

Snell & Wilmer

information contained therein, and all other information produced or disclosed during This

10

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

9

document, deposition, other testimony, discovery response or otherwise, by any party to This

12

Action or its representatives (the “Supplying Party”) to any other party or parties to This Action

13

or their representatives (the “Receiving Party”), whether provided voluntarily, pursuant to formal

14

discovery procedures, or otherwise.

15

III.

Designating Information As “Confidential” Pursuant to This Protective Order
5.

16

Documents. Any Supplying Party producing documents that contain information

17

that meets the definition of Confidential Information as provided in Paragraph 1 and 2 herein,

18

may designate the contents of the documents as “Confidential” prior to or at the time of

19

production by placing the following designation on the documents: “CONFIDENTIAL -

20

SUBJECT TO PROTECTIVE ORDER.” Where a document consists of more than one page,

21

each page of the document shall be designated as such. Any document or information for which

22

it is impracticable or impossible to affix such a legend may be designated by written notice to

23

that effect with a reasonable description of the material in question including a BATES number,

24

where applicable.

25

6.

If a Supplying Party makes documents or information available for inspection,

26

rather than delivering copies to another party, no “Confidential” designation is required in

27

advance of the initial inspection. For the purpose of initial inspection only, the documents shall

28
-316821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 4 of 18

1

be considered “CONFIDENTIAL.” Upon production of the inspected documents, the Supplying

2

Party shall designate which of the produced or copied documents and materials are or contain

3

Confidential Information pursuant to Paragraph 5 of this Order.

4

7.

Written Discovery.

If responses to written discovery contain Confidential

5

Information as defined in Paragraph 1 and 2 of this Protective Order, the Responding Party may

6

designate the responses as Confidential Information by designating the responsive documents

7

and information as set forth in Paragraph 5 with specific indication of the page and line

8

references of the material that is “Confidential” under the terms of this Protective Order.

9

8.

Depositions. The parties may designate as Confidential any deposition transcript,

Snell & Wilmer

or portions thereof, in this action that meets the definition of “Confidential Information”

11
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

10

provided in Paragraphs 1 and 2 of this Protective Order. Counsel for the designating party shall

12

advise the court reporter and the parties on the record during the deposition or by letter no later

13

than thirty (30) calendar days after the court reporter provides the parties with the final

14

deposition transcript. If any portion or all of a deposition transcript is designated as Confidential

15

Information, the court reporter shall label the cover page of the original and one copy of the

16

transcript to state that Confidential Information is contained therein, and shall label as

17

“Confidential” each page of the transcript and/or exhibits to the deposition transcript that

18

constitute “Confidential Information.” Confidential designations of transcripts or portions

19

thereof apply to audio, video, or other recordings of the testimony. The court reporter shall

20

clearly mark any transcript or portion thereof released prior to the expiration of the 30-day period

21

as “DO NOT DISCLOSE - SUBJECT TO FURTHER CONFIDENTIALITY REVIEW.”

22

Deposition transcripts or portions thereof will be treated as Confidential Information until

23

expiration of the 30-day period. If any party does not designate the transcript as “Confidential”

24

either at the time of the deposition or within the 30-day period defined above, no portion of the

25

entire transcript will be deemed “Confidential” and the “DO NOT DISCLOSE- SUBJECT TO

26

FURTHER CONFIDENTIALITY REVIEW” legend shall be removed. The 30-day period may

27

not be extended without mutual agreement of the parties.

28
-416821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 5 of 18

1

9.

Confidential Information Produced By Third Parties. A party in This Action

2

may designate as Confidential any document, information, or testimony produced or supplied by

3

any person or entity not a party to This Action, that constitutes or meets the definition of

4

Confidential Information as defined in Paragraphs 1 and 2 of this Protective Order. The party

5

claiming confidentiality shall designate the information as such within thirty (30) days of its

6

receipt of such information. Any party receiving information from a third party shall treat such

7

information as Confidential Information during this thirty (30) day period while all parties have

8

an opportunity to review the information and to determine whether it should be designated as

9

confidential. Any party designating third party information as Confidential Information shall

10

have the same rights, duties, and obligations, as a Supplying Party under this Protective Order.

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11

10.

Publicly Available Information.

The restrictions and obligations set forth

12

herein shall not apply to information that is at the time of production or disclosure, or

13

subsequently becomes, through no wrongful act on the part of the Receiving Party, generally

14

available to the public through publication or otherwise.

15

IV.

16

Limitations on Use of Confidential Information
11.

All Confidential Information shall be used for the purpose of this lawsuit only, and

17

except as permitted by this Order, the parties and their respective attorneys, as well as experts or

18

consultants, shall not give, show or otherwise divulge or disclose the Confidential Information,

19

or any copies, prints, negatives or summaries thereof to any person or entity. Notwithstanding

20

the foregoing provisions of this paragraph, nothing in this Order shall prevent the use of any of

21

the documents or electronically stored information (“ESI”) produced pursuant to this Protective

22

Order in other actions brought by the plaintiff’s counsel, so long as a comparable protective

23

order is entered in those other actions.

24

12.

Confidential Information pursuant to this Protective Order shall be treated by the

25

parties, their counsel, and any other signatory to this Protective Order as being confidential and

26

private. Any copy of Confidential Information shall have the same status as the original. The

27

disclosure and use of Confidential Information shall be confined to the permissible disclosures

28
-516821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 6 of 18

1

and uses set forth in this Protective Order, and no one shall disclose or use Confidential

2

Information in a manner inconsistent with the terms and intent of this Protective Order.

3

13.

Confidential Information may be disclosed only to the following persons and shall

4

be used solely for the litigation of This Action and may not be disclosed to anyone not

5

authorized under this paragraph:

6

a.

7

are actively engaged in, or actively overseeing This Action;

8

b.

9
c.

11
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

Counsel of record, their associated attorneys, and support staff, including
paralegal and secretarial personnel who are working on This Action;

10

Snell & Wilmer

Parties, their representatives, in-house counsel and regular employees who

Experts and consultants (including their employees) who are consulted or
retained by a party to assist in the litigation of This Action;

12

d.

Third-party contractors and their employees who are consulted or retained

13

by one or more parties to provide litigation-support or copy services in

14

connection with the litigation of This Action;

15

e.

Witnesses or prospective witnesses in This Action;

16

f.

Court reporters, videographers, and other persons involved in recording

17

deposition testimony in This Action;

18

g.

The Court and its personnel, including any mediators and/or special

19

masters appointed by the Court, or if on appeal, the court with appellate

20

jurisdiction; and

21

h.

22

14.

Jurors in This Action.

Prior to the disclosure of any Confidential Information to any person identified in

23

Paragraph 13 above (except Court personnel and jurors), the disclosing party will provide each

24

potential recipient of Confidential Information with a copy of this Protective Order, which said

25

recipient shall read. Upon reading this Protective Order, such person shall sign an

26

Acknowledgment, annexed to this Protective Order as Exhibit A, acknowledging that he or she

27

has read this Protective Order and shall abide by its terms. Notwithstanding the foregoing

28
-616821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 7 of 18

1

provision, Confidential Information may be disclosed to a witness who will not sign an

2

Acknowledgement in a deposition at which the party who has designated the Confidential

3

Information is represented or has been given notice that Confidential Information produced by

4

the party may be used.

5

maintained by counsel for each party and only with good cause shown and separate court order

6

will the Acknowledgements be disclosed to the opposing side. Persons who come into contact

7

with Confidential Information for clerical or administrative purposes, and who do not retain

8

copies or extracts thereof, are not required to execute Acknowledgments but must comply with

9

the terms of this Protective Order.

10

15.

These Acknowledgements are strictly confidential and shall be

All persons receiving or given access to Confidential Information in accordance

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11

with the terms of this Order consent to the continuing jurisdiction of this Court for the purposes

12

of enforcing this Order and remedying any violations thereof.

13

16.

Confidential Information shall not be placed or deposited in any sort of data bank

14

that is made available for indiscriminate or general circulation to lawyers, litigants, consultants,

15

expert witnesses or any other persons or entities not working on This Action and not signatories

16

to this protective order. This paragraph and the other provisions of this Order shall not apply to

17

materials which, if challenged by any party, the Court rules are not entitled to protection. This

18

paragraph does not limit or restrict in any way the manner in which a party may store and make

19

Confidential Information available to the attorneys, support staff, experts, and any other persons

20

or entities working on This Action, provided the general terms of this Order are followed.

21

17.

The parties and their counsel as well as their technical consultants and experts

22

shall also not sell, offer, advertise, publicize nor provide under any condition any Confidential

23

Information produced by any other party to any competitor of any defendant or to any employee

24

of any competitor (irrespective of whether they are retained as an expert by a party in This

25

Action).

26
27

18.

In the event that either of the parties is served by a non-party with a subpoena for

Confidential Information that was originally provided and claimed as Confidential by another

28
-716821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 8 of 18

1

party, the Receiving Party will give notice to the Supplying Party, where reasonably possible, no

2

less than 10 business days prior to disclosure by providing a copy of the subpoena, to allow a

3

reasonable opportunity for the Supplying Party to object to such production before any

4

production takes place.

5

19.

If a Receiving Party learns of any unauthorized disclosure of Confidential

writing of such disclosure, including to whom the material was disclosed; (b) make a reasonable

8

effort to retrieve all copies of the Confidential Information only to the extent the Receiving Party

9

has control over the unauthorized disclosed documents; (c) to the extent the Receiving party has

10

control over the person or persons to whom unauthorized disclosures were made, inform the

11

Snell & Wilmer

Information, it shall take reasonable efforts to immediately (a) inform the Supplying Party in

7

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

6

persons of the terms of this Protective Order.

12

V.

13

Changes In and Objections to Designation of Information
20.

Inadvertent Disclosure of Confidential Information.

If a Supplying Party

14

through inadvertence produces any documents containing Confidential Information without

15

designating the documents as such in accordance with Paragraph 5 of this Protective Order, such

16

inadvertence does not waive any claim for confidentiality that the Supplying Party may possess

17

so long as the Supplying Party notifies the Receiving Party of the Confidential Information

18

designation in writing within twenty (20) days of the date that the Supplying Party became aware

19

or reasonably should have become aware of the failure to designate the information as

20

Confidential Information. If a Supplying Party fails to designate information as Confidential

21

Information within this twenty (20) day period, the Supplying Party waives its right to designate

22

the documents as Confidential Information. The Supplying Party shall also supply the Receiving

23

Party with a new copy of the documents designated in accordance with Paragraph 5 of this

24

Protective order, which shall be substituted for the undesignated documents. Upon receipt of the

25

substitute documents, the Supplying Party shall promptly return or destroy the improperly-

26

designated document(s).

27

disclosure, the Receiving Party shall, within a reasonable time, not to exceed twenty (20) days,

Upon receipt of the Supplying Party’s notice of the inadvertent

28
-816821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 9 of 18

1

(a) treat such material in accordance with this Order; (b) take reasonable steps to notify any

2

person to whom the Receiving Party disclosed such information of the new confidential

3

designation; (c) take reasonable steps to procure the return of all copies of such material from

4

any such persons known to have possession of such material who are not entitled to receipt of

5

Confidential Information under the terms of this Protective Order; (d) request in writing that

6

such person procure the return of such information from any persons to whom such person may

7

have disclosed the information.

deemed to have waived any claim of confidentiality with respect to information inadvertently not

10

claimed as confidential to which the Supplying Party fails to claim as Confidential Information,

11

Snell & Wilmer

Notwithstanding the foregoing provisions of this section, the Supplying Party shall be

9

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

8

prior to sixty (60) days from the close of discovery.

12

21.

Challenges to Designation of Confidential Information. A Receiving Party

13

may challenge a Supplying Party’s designation or redesignation by notifying the Supplying Party

14

in writing that the confidentiality designation does not meet the definition of “Confidential

15

Information.” The designation by any party of Confidential Information raises no presumption

16

that the information or documents are entitled under the law to protection.

17

contends, in writing, that any document, material, ESI, or other thing has been erroneously

18

designated as Confidential Information, the party who designated the information as Confidential

19

Information shall initiate a meet and confer within ten (10) days with the opposing party and the

20

parties shall make a good faith effort to resolve issues relating to such designations. After the

21

meet and confer, the party who designated the information as Confidential Information shall file

22

a motion with the Court within thirty (30) days of receiving such written notification establishing

23

that the information is entitled to protection as Confidential Information under the law. If the

24

designating party fails to timely file such a motion within the allotted thirty (30) day period, the

25

document, ESI, material, or other thing, which is designated as Confidential Information, shall

26

forthwith be produced and be deemed not to be Confidential Information. Any information or

27

thing being challenged as inappropriately designated as Confidential Information, shall

28
-916821470

If any party

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 10 of 18

1

nonetheless be treated as Confidential Information unless and until either (a) the designating

2

party gives written permission to do otherwise, (b) the designating party fails to file a motion

3

establishing that the challenged material is subject to protection as Confidential Information

4

under the law within the thirty (30) day time period, or (c) the Court rules that the document,

5

material, ESI, or other thing shall not be treated as confidential. Should the Court rule that any

6

item designated as Confidential Information is not entitled to protection under the law, the

7

designating party shall, within fourteen (14) days after all appeals are exhausted, provide the

8

party challenging the confidential designation with copies of each item free of any language

9

indicating that the item is subject to a Protective Order.

10

22.

Nothing in this Order shall be deemed to shift the burden of proof to the

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11

party challenging the confidential designation with regard to whether the materials

12

produced pursuant to his Order are entitled to protection under the law as Confidential

13

Information.

14

VI.

15

Filing Under Seal
23.

Where a Party Files Documents and Contends the Documents Should be Kept

16

Sealed. Where a party intends to file documents that contain Confidential Information with the

17

Court, said party must file a motion for an order sealing the documents consistent with the Ninth

18

Circuit opinions of Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir.

19

2006) and Pintos v. Pacific Creditors Association, 605 F.3d 665, 678 (9th Cir. 2010) and

20

consistent with Local Rules 10-5(b). A copy of the motion must be served on all parties that

21

have appeared in the case.

22

24.

Where a Party Files Documents Claimed as Confidential by Another Party.

23

A party that files or intends to file with the Court Confidential Information produced by another

24

party but does not intend to request to have the records sealed, must do the following:

25

a.

Lodge the documents under seal in accordance with Local Rules 10-5(b);

26

b.

File redacted copies of the documents (if appropriate) so that they do not disclose

27

the contents of the records that are subject to the confidentiality agreement or

28
- 10 16821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 11 of 18

1

protective order;

2

c.

3

Serve a copy of the motion on all parties that have appeared in the case;
and

4

d.

Give written notice to the party that produced the documents that the documents

5

will be placed in the public court file unless the party files a timely motion to seal

6

records.

notice fails to file a motion to seal the records within 15 days of receipt of the notice referenced in

9

subsection 24(c) or to obtain a court order extending the time to file such motion, the clerk must

10

promptly remove all the documents filed under seal pursuant to this provision from the envelope

11

Snell & Wilmer

If the party that produced the Confidential Information and was served with the above-mentioned

8

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

7

or container where they are located and place them in the public file. If the party files a motion or

12

an application to seal within 15 days of receipt of the notice referenced in subsection 24(c) days

13

or such later time as the Court has ordered, these documents are to remain conditionally under

14

seal until the Court rules on the motion or application and thereafter are to be filed as ordered by

15

the Court.

16

This section shall not apply with respect to documents admitted into evidence as exhibits

17

at the trial of this matter. The Supplying Party reserves the right, however, to petition the Court

18

for protection with respect to such documents admitted into evidence as exhibits at trial.

19

VII.

20

Miscellaneous Provisions
25.

Amending or Modifying Protective Order. By written agreement of the parties,

21

or upon motion and order of the Court, the terms of this Protective Order may be amended or

22

modified. This Protective Order shall continue in force until amended or modified by consent or

23

agreement of the parties or by order of the Court, and shall survive any final judgment or

24

settlement in This Action, including but not limited to any final adjudication of any appeals and

25

petitions for extraordinary writs, unless otherwise vacated or modified by the Court. The Court

26

shall have continuing jurisdiction over the terms and provisions of this Protective Order.

27

///

28
- 11 16821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 12 of 18

1

26.

After Final Adjudication. Upon written demand by the Supplying Party made

final adjudication of any appeals and petitions for extraordinary writs, the Receiving Party shall

4

assemble and return all Confidential Information to the Supplying Party or, alternatively, shall

5

destroy all such material at the Supplying Party’s expense. The Receiving Party shall verify the

6

complete destruction or return to the Supplying Party all such Confidential Information by

7

executing and mailing to counsel for the Supplying Party an Acknowledgment in the form

8

attached hereto as Exhibit B.

9

maintained by counsel for the Receiving Party and counsel for the Supplying Party.

10

Notwithstanding the foregoing provisions of this paragraph, the Receiving Party may maintain

11

Snell & Wilmer

within thirty (30) days after final adjudication of This Action, including but not limited to, any

3

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

2

its privileged communications, work product, Acknowledgements pursuant to the Protective

12

Order, materials required to be retained pursuant to applicable law, and all court-filed documents

13

even though they contain Confidential Information, but such materials shall remain subject to the

14

terms of this Protective Order. Notwithstanding the foregoing provisions of this paragraph, this

15

provision may not be invoke while the law firm Lopez McHugh LLP has active pending cases

16

relating to IVC Filters manufactured by C.R. Bard, Inc. and/or Bard Peripheral Vascular, Inc.

17

27.

A copy of each such executed Acknowledgement shall be

The terms of this Protective Order do not preclude, limit, restrict, or otherwise

18

apply to the use of Confidential Information at trial. The use of Confidential Information during

19

trial will be addressed in a later agreement between the parties, or, if they cannot reach an

20

agreement, by further order of the Court.

21

28.

Nothing in this Order shall be deemed a waiver of any parties’ right to oppose any

22

motion by any other party for a protective order or to oppose any objection to the disclosure of

23

any information or documents on any legal grounds, including, but not limited to, the grounds

24

that the party seeking the protective order has neither timely nor adequately objected to

25

disclosure of such documents and information or moved for a protective order.

26
27

29.

This Protective Order does not relieve any party of its obligations to respond to

otherwise proper discovery in This Action. Nothing contained in this Order, or any action taken

28
- 12 16821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 13 of 18

1

pursuant to it shall waive or impair any party’s right to assert claims of privilege or work product

2

protection, or the right of any party to object to the relevancy or admissibility of documents or

3

information sought or produced into assert objections to requested discovery on grounds other

4

than Confidential Information. This Protective Order also shall not effect or create any

5

presumption with respect to the right of any party from seeking or obtaining additional

6

protection with respect to any documents, materials, or information where allowed by law.

7

30.

Inadvertent Production. Pursuant to Rule 502 of the Federal Rules of Evidence,

collectively “Inadvertently-Produced Documents”) subject to work product immunity, the

10

attorney-client privilege, or other legal privilege protecting information from discovery shall not

11

Snell & Wilmer

inadvertent production of documents or electronically-stored information (hereinafter

9

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

8

constitute a waiver of the immunity or privilege in the pending case or in any other federal or

12

state proceeding. In the event that a party inadvertently produces documents or ESI subject to a

13

claim of privilege, the Supplying Party shall, within 15 days of the discovery of the inadvertent

14

disclosure, notify the other party in writing of the inadvertent disclosure. The Supplying Party

15

may, in the notice, request a “clawback” of the inadvertently disclosed material. Upon receiving

16

notice of the inadvertent production, the parties agree to follow the procedures provided by

17

Federal Rules of Civil Procedure 26(b)(5)(B) with respect to the clawback of the Inadvertently-

18

Produced Documents. All notes or other work product of the Receiving Party, reflecting the

19

contents of such materials, shall be destroyed and not used.

20

If the party receiving such Inadvertently-Produced Documents moves the Court to dispute

21

the claim of privilege or immunity, the party shall not assert the fact or circumstances of the

22

inadvertent production to challenge whether the material is, in fact, privileged. Likewise, as part

23

of any such motion, the Receiving Party shall not challenge the “reasonable steps,” as described

24

in Rule 502(b) of the Federal Rules of Evidence, taken or not taken by the Supplying Party.

25

Pursuant to Federal Rule of Evidence 502(d), there is no waiver of privilege or work

26

product immunity in this matter or any other matter in any other jurisdiction for any document or

27

ESI returned or destroyed under this subsection, or for the subject matter of any such document

28
- 13 16821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 14 of 18

1

or ESI, whether the privileged document or ESI was inadvertently produced following review or

2

as part of a “Quick Peek” production. In the event that either party receives information

3

produced in discovery from the other party that reasonably appears to be Inadvertently-Produced

4

Documents, the Receiving Party shall promptly notify the Supplying Party in writing of the

5

apparently inadvertent production.

6
7

31.

enforcement of this Protective Order against anyone who violates it.

8
9
10

32.

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

Nothing in this Protective Order shall be construed to prevent this Court from

disclosing any facts the Court relies upon in making any findings, or issuing any ruling, order,
judgment, or decree.

11

Snell & Wilmer

Each party shall retain all rights and remedies available to it under the law for the

33.

Within 30 days of any information that has been claimed as Confidential

12

Information being de-designated or made publically available, the Supplying Party shall provide

13

notice of the Confidential Information that has been de-designated and/or made publicly

14

available. Such notice shall be made by identifying bates numbers or by other means such as

15

identifying categories of information where the identification of bates numbers are not possible

16

or not feasible. Publically available includes documents that have been filed with any court or

17

entered as an exhibit during trial not under seal, provided, however, that the Supplying Party is

18

not required to provide notice of de-designation with regard to such documents until any motion

19

or request to seal those documents is denied. This paragraph only applies to the extent that the

20

Supplying Party knew or should have known that the information claimed as Confidential

21

Information was de-designated or made publically available.

22
23

ORDER

24

IT IS SO ORDERED.

25

_____________________________________
_______________________________________
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT JUDGE
DATED: March 20, 2013.
DATED: _______________________________

26
27
28

- 14 16821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 15 of 18

1

EXHIBIT A

2

UNITED STATES DISTRICT COURT

3

DISTRICT OF NEVADA

4

KEVIN PHILLIPS, an individual,

5

Case No. 3:12-cv-00344-RCJ-WGC

Plaintiff,

6

vs.

7

C.R. BARD, INC., a foreign corporation,
BARD PERIPHERAL VASCULAR, INC., an
Arizona corporation, and DOES 1 through 100
inclusive,

8
9

AGREEMENT TO MAINTAIN
CONFIDENTIALITY

Defendants.

10

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11

I, ______________________________ [Name – Print or Type], have been given and have

12

read a copy of the Stipulation and Protective Order, dated _________, 2013 in the case of Kevin

13

Phillips v. C. R. Bard, Inc., et al., Case No. Civil Action No. 3:12-cv-00344-RCJ-WGC, pending

14

in the United States District Court, District of Nevada. I understand and will strictly adhere to the

15

contents of said order. I understand that produced material disclosed to me is subject to the order

16

of this Court and that I am prohibited from copying, disclosing or otherwise using such material

17

except as provided by said court order. I understand that my unauthorized disclosure of any

18

“Confidential Information” may constitute contempt of court, and I agree to be personally subject

19

to the jurisdiction of this Court for the purpose of enforcing my obligations under this Agreement,

20

the order, and any contempt proceeding that may be instituted for my violation of the terms of

21

this Acknowledgment and the Protective Order. I also understand that my signature on this

22

“Agreement to Maintain Confidentiality,” indicating my agreement to be bound by the terms of

23

the Protective Order, is required before I may be allowed to receive and review any produced

24

document and materials that are designated as “Confidential Information.”

25

Date _________________

26
27
28

16821470

_____________________________
Print Name
_____________________________
Signature

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 16 of 18

1

EXHIBIT B

2

UNITED STATES DISTRICT COURT

3

DISTRICT OF NEVADA

4

KEVIN PHILLIPS, an individual,

5

Plaintiff,

6

vs.

7

C.R. BARD, INC., a foreign corporation,
BARD PERIPHERAL VASCULAR, INC., an
Arizona corporation, and DOES 1 through 100
inclusive,

8
9

Case No. 3:12-cv-00344-RCJ-WGC

ACKNOWLEDGMENT OF
DESTRUCTION OR RETURN OF
CONFIDENTIAL INFORMATION

Defendants.

10

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11

I, ________________ [Name – Print or Type], am over the age of 18 years and am a

12

resident of _____________ County, __________________. I make this Declaration based upon

13

my personal knowledge, and I am competent to testify to the matters stated herein.

14

I have requested and received from ____________________ all of the Confidential

15

Information contained in the materials, transcripts, and other things produced in this case Kevin

16

Phillips v. C. R. Bard, Inc., et al., Case No. Civil Action No. 3:12-cv-00344-RCJ-WGC, pending

17

in the United States District Court, District of Nevada.

18

I have either destroyed or have attached hereto all of the Confidential Information

19

contained in the materials, transcripts, and other things, including those materials which were

20

returned to me by the experts and consultants mentioned above in accordance with the preceding

21

paragraph, and as described in the Protective Order which was entered by this Court.

22

Notwithstanding the foregoing provisions of this paragraph, the Receiving Party may maintain its

23

privileged communications, work product, Acknowledgements pursuant to the Protective Order,

24

materials required to be retained pursuant to applicable law, and all court-filed documents even

25

though they contain Confidential Information, but such materials shall remain subject to the terms

26

of this Protective Order.

27

///

28

16821470

Case 3:12-cv-00344-RCJ-WGC Document 83 Filed 03/19/13 Page 17 of 18

1
2

I declare under penalty of perjury under the laws of the State of Nevada that the foregoing
is true and correct.

3

Date _________________

_____________________________
Print Name
_____________________________
Signature

4
5
6
7
8
9
10

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-216821470