Hempel et al v. Cydan Development, Inc. et al

Filing 48

PROTECTIVE ORDER pursuant to ECF No. 45 First Amended Stipulation. (See Order for specifics). Signed by Magistrate Judge Carla Baldwin Carry on 10/18/2018. (Copies have been distributed pursuant to the NEF - KW)

1 THE O’MARA LAW FIRM, P.C.
DAVID C. O’MARA
2 NEVADA BAR NO. 8599
311 East Liberty St.
3 Reno, Nevada 89501
[phone]
4 [phone] (fax)
5 JOSHUA L. SEIFERT PLLC
Joshua L. Seifert, Esq.
6 Pro Hac Vice
[e-mail]
7
175 Varick Street
8 New York, NY 10014
[phone]
9
SLARSKEY LLC
10 David Slarskey, Esq.
Pro Hac Vice
11
[e-mail]
12 800 Third Avenue, 18th Floor
New York, NY 10022
13 [phone]
14 Counsel for Plaintiffs
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

17 ADDISON HEMPEL, CASSIDY
HEMPEL, CHRISTINE HEMPEL, HUGH
18 HEMPEL, and SOLUTION
THERAPEUTICS,
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Plaintiffs,
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v.
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CYDAN DEVELOPMENT, INC.,
22 CYDAN II, INC., VTESSE, INC.,
SUCAMPO PHARMACEUTICALS,
23 INC., and DOES I-X and ROE
CORPORATIONS I-V, inclusive,
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Defendants.

Case No. 3:18-cv-00008-MMD-CBC
[PROPOSED] FIRST AMENDED
STIPULATION AND
PROTECTIVE ORDER

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The parties having agreed to the following terms of confidentiality, and the Court having

2 found that good cause exists for issuance of an appropriately-tailored confidentiality order gov3 erning this action, it is therefore hereby
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ORDERED that any person subject to this First Amended Stipulation and Protective Or-

5 der (“this Order”)—including without limitation the parties to this action, their representatives,
6 agents, experts and consultants, all third parties providing discovery in this action, and all other
7 interested persons with actual or constructive notice of this Order—shall adhere to the following
8 terms:
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1.

Scope. This Order shall govern all information produced in connection with this

10 action in any form to any persons, including, without limitation, deposition testimony and exhib11 its, testimony taken at a hearing or other proceeding, interrogatory answers, documents and other
12 discovery materials (whether produced informally or in response to interrogatories), requests for
13 admissions, requests for production of documents, or other formal methods of discovery. This
14 Order shall also govern all information produced, exchanged, or served in this action pursuant to
15 required disclosures under any federal procedural rule, and any supplementary disclosures there16 to.
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2.

Confidentiality. Any person subject to this Order who receives from any other

18 person any information of any kind—whether document, testimony, or any other form—
19 provided in the course of this action (“Discovery Material”) that is designated as “Confidential”
20 pursuant to the terms of this Order shall not disclose such Confidential Discovery Material to
21 anyone else except as expressly permitted by this Order.
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3.

Definition of “Confidential.” The person producing any given Discovery Materi-

23 al may designate as “Confidential” any Discovery Material or portion of Discovery Material that
24 contains non-public business, commercial, financial, or personal information within the meaning
25 of Fed. R. Civ. P. 26(c)(1)(G), the public disclosure of which is either restricted by law or could,
26 in the good faith opinion of the producing person, adversely affect a person’s or entity’s privacy
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1 interests or obligations or a person’s or entity’s policy, business, commercial, financial, or per2 sonal interests.
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4.

Designation Process. With respect to the Confidential portion of any Discovery

4 Material other than deposition and pre-trial transcripts and exhibits, the producing person or that
5 person’s counsel may designate such portion as “Confidential” by stamping or otherwise clearly
6 marking as “Confidential” the document or protected portion of the document in a manner that
7 will not interfere with legibility or audibility. Deposition and pre-trial testimony and exhibits
8 may be designated as Confidential either on the record during the deposition or within 5 days of
9 receipt of the transcript.
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5.

Designation of Confidential Discovery Material after Production. The failure to

11 designate Discovery Material as Confidential at the time of production shall not constitute a
12 waiver of such designation. At any time prior to the trial of this action, any Discovery Material
13 produced without a “Confidential” designation may be designated by any party as Confidential
14 by informing all parties in writing that the Discovery Material should be treated as Confidential
15 under this Order. Upon receipt of such notice, all parties and persons subject to this Order shall
16 treat such information consistent with the redesignation going forward.
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6.

Use of Confidential Information. Each party and all persons bound by the terms

18 of this Order shall use any Discovery Material designated Confidential only in connection with
19 the prosecution or defense of this action, except by consent of the designating and producing par20 ties or by order of the Court; provided, however, that the foregoing shall not apply to Discovery
21 Material that is or becomes part of the public record or otherwise falls under one of the excep22 tions described below in paragraph 13.
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7.

Disclosure of Confidential Information. No person subject to this Order shall dis-

24 close any Discovery Material designated as Confidentialto any other person, except:
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a. the parties to this action, including their affiliates and their current and former agents and

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employees who are assisting with or making decisions concerning this action, to the ex-

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tent deemed reasonably necessary by counsel of record for the purpose of assisting in the

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prosecution or defense of this action, and provided such persons have first executed the

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Non-Disclosure Agreement attached to this Order;

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b. counsel retained specifically for this action, including any paralegal, clerical, and other
assistant employed by such counsel and assigned to this matter;
c. the author of the Confidential Discovery Material, and any person indicated on the face
of the material as having received a copy of it;

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d. any witness called to testify at deposition or any witness whom counsel for a party in

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good faith believes may be called to testify at trial or deposition in this action, provided

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such person has first executed the Non-Disclosure Agreement attached to this Order;

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e. any person retained by a party to serve as an expert witness or otherwise provide special-

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ized advice to counsel in connection with this action and their staffs, provided such per-

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son has first executed the Non-Disclosure Agreement attached to this Order;

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f. court reporters, videographers, and their respective staffs employed in connection with
this action; and
g. the Court and Court personnel.

16 Prior to any disclosure of any Confidential Discovery Material to any person referred to above in
17 subsections (a), (d), and (e), such person shall be provided by counsel with a copy of this Order
18 and shall sign the Non-Disclosure Agreement attached to it. Counsel shall retain each signed
19 Non-Disclosure Agreement.
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8.

Filings Under Seal. The parties will use reasonable efforts to minimize the use of

21 Confidential Discovery Material in court filings. Unless otherwise permitted by statute, rule, or
22 prior court order, papers filed with the court under seal shall be accompanied by a contempora23 neous motion for leave to file those documents under seal, and shall be filed consistent with the
24 court's electronic filing procedures in accordance with Local Rule IA 10-5. Notwithstanding any
25 agreement among the parties, the party seeking to file a paper under seal bears the burden of
26 overcoming the presumption in favor of public access to papers filed in court. Kamakana v. City
27 & Cnty. of Honolulu, 447 F.2d 1172 (9th Cir. 2006); Pintos v. Pac. Creditors Ass 'n, 605 F .3d
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1 665, 677-78 (9th Cir. 2010). A party wishing to include Confidential Discovery Material in a
2 court filing shall give the designating party prior notice and an opportunity to request that the
3 material be filed under seal.
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9.

Court Proceedings and Trial. Nothing in this Order restricts the parties’ rights to

5 use Confidential Discovery Material in court proceedings or as trial exhibits. If Confidential
6 Discovery Material is used in open court during any court proceeding or filed as a trial exhibit,
7 the material shall lose its confidential status and become part of the public record unless a party
8 applies for and obtains an order from this Court specifically maintaining the confidential status
9 of particular material. Prior to any court proceeding in which Confidential Discovery Material
10 might be used, counsel for the parties shall confer in good faith on the appropriate procedures for
11 protecting the confidentiality of such material.
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10.

Objections to Designations and Heighted Designations. Any party who either ob-

13 jects to any designation of confidentiality, or who requests further limits on disclosure (such as
14 “attorneys’ eyes only” in extraordinary circumstances), may at any time prior to the trial of this
15 action serve upon counsel for the opposing party a written notice stating with particularity the
16 grounds of the objection or request. If the parties cannot reach a prompt agreement respecting the
17 objection, the parties may seek a ruling from the Court.
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11.

Inadvertent Disclosure of Confidential Discovery Material. Each person who has

19 access to Discovery Material that has been designated as Confidential shall take all due precau20 tions to prevent the unauthorized or inadvertent disclosure of such material. In the event that
21 such material is disclosed to any person other than in the manner authorized by this Order, the
22 party responsible for the disclosure or loss of confidentiality shall immediately inform the party
23 that produced the material of all pertinent facts relating to the disclosure or loss of confidentiali24 ty, including the identities of the persons to whom the disclosure was made. The party responsi25 ble for such disclosure shall make reasonable efforts to prevent further disclosure or loss of con26 fidentiality.
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12.

Inadvertent Production and Clawback of Privileged Information. If, in connection

2 with this action, a party inadvertently discloses information subject to a claim of attorney-client
3 privilege or work-product protection (“Inadvertently Disclosed Information”), such disclosure
4 shall not constitute or be deemed a waiver or forfeiture of any claim of attorney-client privilege
5 or work-product protection with respect to the Inadvertently Disclosed Information and its sub6 ject matter. If a party determines that it has produced Inadvertently Disclosed Information, it
7 shall notify the party receiving the information of this fact in writing (“Clawback Request”).
8 Upon receipt of such notification, the receiving party shall refrain from any further examination
9 and disclosure of the claimed Inadvertently Disclosed Information and shall, within five business
10 days, destroy all copies of the Inadvertently Disclosed Information and any documents and
11 things that contain information derived from such Inadvertently Disclosed Information, and pro12 vide a certification of counsel that all such information has been returned or destroyed. A receiv13 ing party may move the Court for an order compelling production of the Inadvertently Disclosed
14 Information. The motion shall be filed under seal and shall not assert as a ground for entering
15 such an order the fact of or circumstances surrounding the inadvertent production or subsequent
16 Clawback Request. For purposes of this section, it shall be irrelevant which party initially dis17 covers the inadvertently or mistakenly produced items that are otherwise properly subject to a
18 claim of attorney-client privilege or work-product protection.
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13.

Exceptions to Confidential Status. This Order shall not apply to information that

20 is or was available to the public prior to disclosure. The restrictions contained in this Order shall
21 not apply to information that is, was, or becomes available to the public other than by an act or
22 omission of the party to whom such disclosure is made, or that is legitimately and independently
23 acquired from a source not subject to this Order. This Order shall not apply to and, thus, does
24 not restrict any party’s use or disclosure, for any purpose, of its own Confidential Discovery Ma25 terial.
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14.

Third Parties. The terms of this Order apply to Confidential information obtained

27 from or provided by a nonparty. Information provided by a nonparty in connection with this ac28

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1 tion and designated Confidential pursuant to the terms of this Order shall be protected by the
2 remedies and relief provided by this Order. A nonparty who produces Confidential Discovery
3 Material in accordance with this Order may seek to enforce this Order in this litigation. The par4 ties shall include this Order along with any subpoenas they serve on any nonparties.
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15.

Subpoenas. If any person in possession of Confidential Discovery Material re-

6 ceives a subpoena or other compulsory process (“Demand”) seeking the production or disclosure
7 of such material, that person shall give written notice to counsel for the party that designated the
8 Discovery Material as Confidential within 14 days of receipt of the Demand. The written notice
9 shall identify the Confidential Discovery Material sought and provide a copy of the Demand it10 self. The person receiving the Demand must object to the production of the Confidential Dis11 covery Material on the grounds of this Order. Nothing herein shall be construed as requiring a
12 person receiving Confidential Discovery Material or anyone else covered by this Order to chal13 lenge or appeal any order requiring production of Confidential Discovery Material covered by
14 this Order, or to subject itself to any penalties for noncompliance with any legal process or order,
15 or to seek any relief from this Court or any other court. Compliance with a Demand will not
16 constitute a violation of this Order.
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16.

Survival. This Order shall survive the termination of this action. Within 60 days

18 of the final disposition of this action, including all possible appeals, all Discovery Material des19 ignated as “Confidential,” including copies, shall be destroyed. However, outside counsel for the
20 parties shall be entitled to retain court papers, deposition and trial transcripts, and litigation files
21 (including attorney work product and Confidential Discovery Material), provided that such coun22 sel and employees for such counsel shall maintain the confidentiality thereof and shall not dis23 close such materials to any person except pursuant to a court order or agreement with the desig24 nating and producing parties or otherwise required by law.
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17.

Order Not a Waiver or Admission. This Order shall not be construed as an ad-

26 mission by any party that any document or other evidence is discoverable, relevant, authentic, or
27 admissible or as a waiver of any right to object to the discoverability, relevance, authenticity, or
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1 admissibility of any document or other evidence. Further, nothing in this Order constitutes an
2 admission by any party that any Confidential Discovery Material is a trade secret or is otherwise
3 confidential and/or proprietary to a party. The parties acknowledge that they may decline to dis4 pute the designation of Discovery Material as “Confidential” for purposes of this Order and this
5 action merely as a matter of convenience and discovery efficiency. The designation of Discov6 ery Material as “Confidential” shall not be admissible as evidence that the Discovery Material is
7 confidential or a trade secret or that any person or party believes the Discovery Material to be
8 confidential or a trade secret. The parties specifically reserve the right to argue that Discovery
9 Material is not confidential and/or not a trade secret notwithstanding its designation as such in
10 this action.
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18.

HIPAA Qualified Protective Order. It is the intent of the parties and Court that

12 this Order be deemed a “qualified protective order” under HIPAA, as set forth in the implement13 ing regulations for that statute found at 42 C.F.R. § 164.512(e).”
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1 DATED: October 9, 2018
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/s/ David C. O’Mara
David C. O’Mara
4 Nevada Bar No. 8599
THE O’MARA LAW FIRM, P.C.
5 311 E. Liberty St.
Reno, NV 89501
6 [phone]
[e-mail]
7
JOSHUA L. SEIFERT PLLC
8 Joshua L. Seifert, Esq.
Pro Hac Vice
9 175 Varick Street
New York, NY 10014
10 [phone]
[e-mail]
11
SLARSKEY LLC
12 David Slarskey, Esq.
Pro Hac Vice
13 800 Third Avenue, 18th Floor
New York, NY 10022
14 [phone]
[e-mail]
15
COUNSEL FOR PLAINTIFFS
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_________/s/ E. Leif Reid
E. Leif Reid
Nevada Bar No. 5750
LEWIS ROCA ROTHGERBER CHRISTIE
LLP
One East Liberty Street
Suite 300
Reno, NV 89501-2128
Telephone: [phone]
Paul B. Gaffney (pro hac vice)
Jessica Bodger Rydstrom (pro hac vice)
Benjamin M. Stoll (pro hac vice)
Amanda J. Cox (pro hac vice)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: [phone]
COUNSEL FOR DEFENDANTS

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IT IS SO ORDERED
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October 18, 2016.
Dated:
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__________________
UNITED STATES MAGISTRATE JUDGE

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NON-DISCLOSURE AGREEMENT
I, ________________________________, declare under penalty of perjury that I have
read in its entirety and understand the First Amended Stipulation and Protective Order that was
issued by the United States District Court for the District of Nevada on

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_____________________ in case No. 3:18-cv-00008. I agree to comply with and to be bound
by all the terms in this Order, and I understand and acknowledge that failure to so comply will

8 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
9 not disclosure in any manner any information that is subject to this Order to any person or entity
10 except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the Dis-

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trict of Nevada for the limited purpose of the enforcement of this Order, even if such enforce13
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ment occurs after termination of this action.

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16 Dated: ____________________

Signed: __________________________________

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