Speakes et al v. Taro Pharmaceutical Industries, Ltd. et al

Filing 78

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (As further set forth in this Order.) (Signed by Magistrate Judge Ona T. Wang on 12/4/2019) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER SPEAKES, Individually and
on Behalf of All Others Similarly Situated,
vs.

Plaintiff,

No. 1:16-cv-08318 (ALC) (OTW)

TARO PHARMACEUTICAL INDUSTRIES,
LTD., MICHAEL KALB, and
KALYANASUNDARAM SUBRAMANIAN,
Defendants.
[PROPOSED] STIPULATED PROTECTIVE ORDER
WHEREAS, the Parties having agreed to the following terms of confidentiality, and the
Court having found that good cause exists for the issuance of an appropriately tailored
confidentiality order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is hereby
ORDERED that the following restrictions and procedures shall apply to the information
and documents exchanged by the parties in connection with the pre-trial phase of this action:
1.

DEFINITIONS
1.1.

Party: any party in the Action, including all of its officers, directors, principals,

employees, Consultants, Experts and Outside Counsel, as defined below.
1.2.

Non-Party: any entity that is not a named party to the Action.

1.3.

Discovery Material: all documents, items or other information—regardless of the

medium or manner generated, stored or maintained—including, among other things, testimony,
interrogatory responses, transcripts, depositions and deposition exhibits, responses to requests to
admit, recorded or graphic matter, electronically stored information (“ESI”), tangible things
and/or other information produced, given, exchanged by or obtained from any Party or Non-

Party during discovery in this Action that are produced or generated in disclosures or responses
to discovery in this Action (whether produced pursuant to Federal Rule of Civil Procedure 34,
subpoena or otherwise). This includes any material produced, filed or served by any Party or
person during discovery in this Action, or any information included in any such material.
Discovery Material produced, exchanged or disclosed in this Action shall be used only for the
purposes of this Action, and not for any other proceeding or business, competitive, personal,
private, public or other purpose.
1.4.

CONFIDENTIAL Information or Items: Discovery Material that has not been

made public by the Producing Party, or Designating Party if different from the Producing Party,
and that the Producing Party, or Designating Party if different from the Producing Party,
reasonably and in good faith believes qualifies for protection under standards developed under
Federal Rule of Civil Procedure 26(c), including: (a) nonpublic, confidential, proprietary or
commercial information not readily ascertainable through lawful means by the public or the
Receiving Party; (b) information that is commercially sensitive, including, without limitation,
confidential research or business development information; or (c) information kept confidential
pursuant to law or regulation.
1.5.

HIGHLY CONFIDENTIAL Information or Items: Discovery Material that

contains competitive or highly sensitive information and that the Designating Party reasonably
and in good faith believes is “CONFIDENTIAL” as set forth under Paragraph 1.4 above, such as,
inter alia: (a) trade secrets; (b) confidential research, development, testing and studies relating to
drug products; (c) sensitive financial or strategic commercial information; (d) material or
information in possession of a Party or person concerning which said Party or person has an
independent obligation of confidentiality to a Non-Party or person; (e) information relating to

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past, current or future pharmaceutical products other than the generic pharmaceutical products at
issue in this Action; (f) an individual’s family, financial, medical, personnel records or other
highly sensitive or personally identifying information; or (g) information protected by foreign,
federal or state privacy laws. In addition, with regard to subparagraphs (a), (b), (c) and (e), the
Designating Party must also reasonably and in good faith believe that disclosure of this
information is likely to cause harm to its competitive position.
1.6.

OUTSIDE COUNSEL EYES ONLY Information or Items: Discovery Material

that contains highly competitive or highly sensitive information and which the Designating Party
reasonably and in good faith believes is: (a) “CONFIDENTIAL” as set forth under Paragraph
1.4 above or “HIGHLY CONFIDENTIAL” as set forth under Paragraph 1.5 above; and either
(b) contains information, the disclosure of which is likely to have a significant effect on current
or future (i) business strategies or decisions, (ii) product plans or development or (iii) pricing; or
(c) was previously produced in a related matter with an OUTSIDE COUNSEL EYES ONLY
designation.
The Parties intend that the OUTSIDE COUNSEL EYES ONLY designation will be used
only under these limited circumstances.
1.7.

Receiving Party: a Party that receives Discovery Material from a

Producing Party.
1.8.

Producing Party: a Party or Non-Party that produces Discovery Material.

1.9.

Designating Party: a Party or Non-Party that designates information or items that

it or another Party or Non-Party produces in disclosures or in responses to discovery as
CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL EYES ONLY.

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1.10.

Protected Material: any Discovery Material that is designated as

CONFIDENTIAL, HIGHLY CONFIDENTIAL or as OUTSIDE COUNSEL EYES ONLY.
1.11.

Outside Counsel: attorneys, as well as their regular and temporary support staffs,

including but not limited to attorneys, paralegals, secretaries, law clerks and investigators, who
are not employees of a Party but who are retained to represent or advise a Party in this Action.
1.12.

In House Counsel: attorneys and other personnel employed by or on behalf of a

Party to perform legal functions, as well as their regular and temporary support staffs, including
but not limited to attorneys, paralegals, secretaries, law clerks and investigators.
1.13.

Counsel (without qualifier): Outside Counsel and In House Counsel.

1.14.

Expert and/or Consultant: a person with specialized knowledge or experience in a

matter pertinent to this Action, along with his or her employees and support personnel, who has
been retained by a Party or its Counsel to serve as an expert witness or as a consultant in this
Action, and who is not a current employee of a Party.
1.15.

Professional Vendors: persons or entities that provide litigation support services

(e.g., copying, organizing, filing, coding, converting, storing, retrieving data in any form or
media or designing programs for handling data connected with this Action, including the
performance of such duties in relation to a computerized litigation support system, etc.) who
have been retained by a Party or its Counsel to provide litigation support services in this Action,
and who are not current employees of a Party, and their employees and subcontractors.
2.

SCOPE OF PROTECTIVE ORDER
2.1.

This Order shall apply to all Discovery Material.

2.2.

Nothing herein shall impose any restriction on the use or disclosure by a party of

its own documents or information.

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2.3.

The parties agree that this Stipulated Protective Order will constitute a Qualified

Protective Order under 45 C.F.R. 164.512(e), whereby the order (a) prohibits the parties from
using or disclosing protected health information for any purpose other than the litigation or
proceeding for which such information was requested and (b) requires the return to the covered
entity or destruction of protected health information (including all copies made) at the end of the
litigation or proceeding.
3.

CONFIDENTIALITY DESIGNATIONS (THREE-TIER)
3.1.

Each Party and any Non-Party shall have the right to designate any Discovery

Material as confidential and subject to this Order, by marking such Material as
“CONFIDENTIAL”, “HIGHLY CONFIDENTIAL” or “OUTSIDE COUNSEL EYES ONLY”
in accordance with Paragraph 4 of this Order. It shall be the duty of the Party or Non-Party who
seeks to invoke protection under this Order to give notice, as set forth below, of the Discovery
Material designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL
EYES ONLY. The duty of the Parties and of all other persons bound by this Order to maintain
the confidentiality of the Discovery Material so designated shall commence with such notice.
3.2.

CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL EYES

ONLY Discovery Material, shall include: (a) all copies, extracts and complete or partial
summaries prepared from such CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE
COUNSEL EYES ONLY Discovery Material; (b) portions of deposition transcripts and exhibits
thereto that contain, summarize or reflect the content of any such CONFIDENTIAL, HIGHLY
CONFIDENTIAL or OUTSIDE COUNSEL EYES ONLY Discovery Material; (c) portions of
briefs, memoranda or any other writings filed with the Court and exhibits thereto that contain,
summarize or reflect the content of any such CONFIDENTIAL, HIGHLY CONFIDENTIAL or
OUTSIDE COUNSEL EYES ONLY Discovery Material; and (d) written discovery responses
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and answers that contain, summarize or reflect the content of any such CONFIDENTIAL,
HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL EYES ONLY Discovery Material.
3.3.

CONFIDENTIAL, HIGHLY CONFIDENTIAL and OUTSIDE COUNSEL

EYES ONLY Discovery Material shall not include: (a) information in the public domain at the
time of disclosure, provided that if only part of the contents of particular CONFIDENTIAL,
HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL EYES ONLY Discovery Material is in
the public domain, the remaining contents shall remain subject to this Order; (b) information the
Receiving Party can show was in its possession prior to the time of disclosure; (c) information
that becomes a part of the public domain through no fault of a Receiving Party; or
(d) information the Receiving Party receives from a Non-Party properly and rightfully in
possession of said information, and not as a result of any breach of confidentiality, and properly
and rightfully authorized to make disclosure without restriction as to disclosure. The Receiving
Party shall have the burden of proving that the use or disclosure satisfies one or more of these
criteria. Furthermore, Designating Parties will use reasonable care to avoid designating
Discovery Materials that do not need to or cannot be designated as such.
3.4.

The Receiving Party may challenge a designation of CONFIDENTIAL, HIGHLY

CONFIDENTIAL and OUTSIDE COUNSEL EYES ONLY Discovery Material in accordance
with the provisions of Paragraph 7.
3.5.

Notwithstanding anything else herein, Discovery Material previously produced in

the multidistrict litigation in the United States District Court for the Eastern District of
Pennsylvania captioned In re Generic Pharmaceuticals Pricing Antitrust Litigation, No. 2:16md-2724 (the “MDL”) that is subsequently produced in this Action shall be entitled to the same

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confidentiality designation (CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE
COUNSEL EYES ONLY) in this Action as applicable in the MDL.
4.

DESIGNATING MATERIALS AS “CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL” AND/OR “OUTSIDE COUNSEL EYES ONLY”
4.1.

Designating Documentary Discovery Material. Any Party or any Non-Party may

designate Discovery Material as CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE
COUNSEL EYES ONLY under the procedures and standards set forth in this Order, and such
Discovery Material shall be treated in accordance with the provisions of this Order.
4.2.

Manner and Timing of Designations. The designation of information as

CONFIDENTIAL, HIGHLY CONFIDENTIAL and/or OUTSIDE COUNSEL EYES ONLY for
purposes of this Order shall be made in the following manner:
a.

For information in documentary or digital image format the Designating

Party shall affix a legend to each page or digital image that contains Protected Material. The
legend shall include “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL” or “OUTSIDE
COUNSEL EYES ONLY” and shall be affixed in such a manner as not to obliterate or obscure
any written part of the Discovery Material.
b.

For Discovery Material produced in some form other than documentary or

digital image, and for any other tangible items such as recordings, magnetic media, photographs
and things, the Designating Party shall affix in a prominent place a legend substantially in the
above form to the Discovery Material or a container for it, to a placeholder image, or in the
electronic file name, in any suitable and readily viewable manner.
c.

A Party or Non-Party that makes hard-copy documents or other Discovery

Materials available for inspection need not designate them for protection until after the
inspecting Party has indicated which documents or other Discovery Materials it would like

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copied and produced. During the inspection and before the designation, and until and unless
produced without any confidentiality designation, all Discovery Materials made available for
inspection shall be deemed to be OUTSIDE COUNSEL EYES ONLY. After the inspecting
Party has identified the documents or other Discovery Material it wants copied and produced, the
Producing Party shall affix the appropriate legend on each page or other container, as
appropriate, that contains Protected Material.
d.

For testimony given in a deposition, or other pretrial proceeding:
(i)

Parties and deponents may, within 60 days after receiving a final

transcript of a deposition, designate the transcript (and exhibits thereto) as CONFIDENTIAL,
HIGHLY CONFIDENTIAL and/or OUTSIDE COUNSEL EYES ONLY to the extent the Party
or deponent believes the transcript contains Protected Material.
(ii)

Until the expiration of the 60-day period during which such

designations may be made, the entire deposition will be treated as subject to protection as
HIGHLY CONFIDENTIAL under this Order, except for parts of the deposition transcript that
discuss Discovery Material that has been previously designated, or are designated on the record
during the deposition, as OUTSIDE COUNSEL EYES ONLY.
(iii)

If any depositions are videotaped or digitally recorded, those

portions of the videotape or recording corresponding to portions of the deposition transcript
designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL and/or OUTSIDE COUNSEL
EYES ONLY shall be afforded the same status.
4.3.

Inadvertent Failures to Designate. The inadvertent failure to designate particular

Discovery Material as CONFIDENTIAL, HIGHLY CONFIDENTIAL and/or OUTSIDE
COUNSEL EYES ONLY at the time of production shall not operate to waive a Party’s or

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person’s right to later designate such Discovery Material as CONFIDENTIAL, HIGHLY
CONFIDENTIAL and/or OUTSIDE COUNSEL EYES ONLY. Any correction and notice of
the correction shall be made in writing, accompanied by substitute copies of each item of
Discovery Material, properly marked CONFIDENTIAL, HIGHLY CONFIDENTIAL and/or
OUTSIDE COUNSEL EYES ONLY in accordance with Paragraph 4.2 of this Order. A
Receiving Party may challenge the correction in accordance with Paragraph 7 of this Order, and
until that challenge is resolved by the Parties or the Court, the disputed Discovery Material shall
be treated as CONFIDENTIAL, HIGHLY CONFIDENTIAL and/or OUTSIDE COUNSEL
EYES ONLY in accordance with the corrected designation. If no challenge is made, then within
5 calendar days of receipt of substitute copies of the Discovery Material, the Receiving Party
shall destroy or return to counsel for the Producing Party all copies of such misdesignated
Discovery Material. No Party shall be deemed to have violated this Order if, prior to notification
of any later designation, such Discovery Material has been disclosed or used in a manner
inconsistent with the later designation. If the Discovery Material that was inadvertently not
designated is, by the time of the later designation, filed with a court on the public record, the
Party or Non-Party that failed to make the designation shall move for appropriate relief.
4.4.

Increasing the Designation of Discovery Material Produced by Other Parties or

Non-Parties. Subject to the standards of Paragraphs 1.5 and 1.6, a Party may increase the
designation (i.e., change any Discovery Material produced without a designation to a designation
of “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL” or “OUTSIDE COUNSEL EYES
ONLY,” designate any Discovery Material produced as “CONFIDENTIAL” to a designation of
“HIGHLY CONFIDENTIAL” or “OUTSIDE COUNSEL EYES ONLY” or designate any
Discovery Material produced as “HIGHLY CONFIDENTIAL” to a designation of “OUTSIDE

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COUNSEL EYES ONLY”) of any Discovery Material produced by any other Party or NonParty, provided that said Discovery Material contains the Designating Party’s own
CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL EYES
ONLY Information.
a.

Increasing a designation shall be accomplished by providing written notice

to all Parties, and the Producing Party if the Producing Party is a Non-Party, identifying (by
Bates Number or other individually identifiable information) the Discovery Material whose
designation is to be increased. Promptly after providing such notice, the Designating Party shall
provide relabeled copies of the Discovery Material to each Receiving Party reflecting the change
in designation. The Receiving Party will replace the incorrectly designated material with the
newly designated materials and will destroy the incorrectly designated materials. Any Party may
object to the increased designation of Discovery Material pursuant to the procedures set forth in
Paragraph 7 regarding challenging designations. If a challenge is made, the Designating Party
shall bear the burden of establishing the basis for the increased designation, and until the
challenge is resolved by the Parties or the Court, the disputed Discovery Material shall be treated
as CONFIDENTIAL, HIGHLY CONFIDENTIAL and/or OUTSIDE COUNSEL EYES ONLY
in accordance with the corrected designation.
b.

No Party shall be held in breach of this Order if, prior to notification of

such later re-designation, the Protected Material was disclosed or used in a manner inconsistent
with such later re-designation.
5.

DISCLOSURE AND USE OF DISCOVERY MATERIAL
5.1.

Absent an agreement of the Producing Party or an Order to the contrary by this

Court or other court of competent jurisdiction, and except as provided in Paragraph 5.5 below,
each Party and all other persons bound by the terms of this Order shall use any Discovery
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Material produced or otherwise provided by a Party or Non-Party other than itself solely for
purposes of litigating or attempting to settle any part of this Action. In no event shall such
Discovery Material be used for any other purpose, including without limitation any business,
competitive, personal, private, public or any other purpose, or for any other proceeding. The
attorneys of record for the Parties shall exercise reasonable care to ensure that the information
and documents governed by this Order are (a) used only for the purpose specified herein and
(b) disclosed only to authorized persons.
5.2.

Discovery Material must be stored and maintained by a Receiving Party at a

location and in a secure manner that ensures that access is limited to the persons authorized
under this Order. For purposes of this Order, a secure website, or other internet-based document
depository with adequate security and access limited to persons authorized under this Order,
shall be deemed a secure location.
5.3.

CONFIDENTIAL Discovery Material may be disclosed, summarized, described,

revealed or otherwise made available in whole or in part only in accordance with the terms of
this Order and only to the following persons:
a.

any officer, director or employee of a Party who is required in good faith

to provide material assistance in the conduct of this Action;
b.

Parties’ In House Counsel;

c.

Outside Counsel for the Parties;

d.

this Court, or any other court exercising jurisdiction with respect to this

Action, any appellate court(s), court personnel and qualified persons (including necessary
clerical personnel) recording, taking or transcribing testimony or argument at any deposition,
hearing, trial or appeal in this Action;

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e.

any person designated by the Court upon such terms as the Court may

f.

any special master, mediator or arbitrator engaged by the Parties or

deem proper;

authorized by the Court for purposes of mediation, arbitration or other dispute resolution
regarding issues arising in this Action;
g.

Experts and Consultants retained by the Parties to provide services in

h.

Professional Vendors retained by the Parties to provide services in

i.

a fact witness, at the witness’s deposition in this Action, but only if

this Action;

this Action;

Counsel who discloses Protected Material to the witness determines, in good faith, that such
disclosure is reasonably necessary and appropriate to assist in the conduct of this Action, and
subject to the terms set forth in this Order regarding the use of Protected Material in depositions;
j.

the author, addressees, recipients, or custodian of the document, or any

current employee or Federal Rule of Civil Procedure 30(b)(6) witness of the Producing or
Designating Party;
k.

(i) the person, or a current officer, director or employee of an entity, that

produced or originally created the Protected Material; (ii) any person who was an officer or
employee of the Producing Party at the time the Protected Material was originally created,
provided that the disclosing party has a good faith belief that the matters memorialized in the
Protected Material were within the scope of employment of, or otherwise were known to, such
person; (iii) any person who was an author, addressee or recipient of the Protected Material
sought to be disclosed to that person; or (iv) any person expressly mentioned, discussed or

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referred to by actual name or title in the Protected Material as indicated on its face, provided that
the disclosing party has a good faith belief that the matters memorialized in the Protected
Material were within the scope of employment of, or otherwise were known to, such person;
l.

others as to whom the Designating Party has agreed (or in the case of

CONFIDENTIAL Discovery Material for which there are multiple Designating Parties, all
Designating Parties have agreed) in writing or on the record;
m.

any Defendant that is a natural person; and

n.

any Trustee of a Party owing duties to that Party and any legal

representative of a Party with specific responsibilities for this Action (provided that such Party
has identified any such person in writing to counsel for the Producing Party or the Designating
Party sufficiently in advance of any disclosure to such person to enable the Producing Party or
the Designating Party to raise concerns about any such disclosure with the Receiving Party and,
if necessary, the Court).
5.4.

HIGHLY CONFIDENTIAL Discovery Material may be disclosed only to those

persons described in Paragraphs 5.3 (c), (d), (e), (f), (g), (h), (j), (k), (l), (m) and (n). HIGHLY
CONFIDENTIAL Discovery Material also may be disclosed to those persons described in
Paragraph 5.3(b), provided that they are actively assisting in the Action, and agree not to disclose
at any time the HIGHLY CONFIDENTIAL Discovery Material or information contained therein
to any officer, director, employee or person affiliated with a Party, unless that person is
otherwise permitted to possess such HIGHLY CONFIDENTIAL Discovery Material under the
terms of this Order.
5.5.

OUTSIDE COUNSEL EYES ONLY Discovery Material may be disclosed only

to those persons described in Paragraphs 5.3 (c), (d), (e), (f), (g), (h), (j), (k), (l), (m) and (n).

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Unless otherwise agreed to by the Parties or permitted under the terms of this Order, OUTSIDE
COUNSEL EYES ONLY Discovery Material also may be disclosed to those persons described
in Paragraph 5.3(b) only where (a) the Designating Party has agreed in writing or on the record
to the disclosure to those persons; (b) the Receiving Party believes in good faith that there is a
compelling need for those persons to review the particular OUTSIDE COUNSEL EYES ONLY
Discovery Material; and (c) those persons are actively assisting in the Action, and agree not to
disclose at any time the OUTSIDE COUNSEL EYES ONLY Discovery Material or information
contained therein to any officer, director, employee or person affiliated with a Party, unless that
person is otherwise permitted to possess such OUTSIDE COUNSEL EYES ONLY Discovery
Material under the terms of this Order. If the Designating Party does not agree in writing or on
the record to the disclosure, Counsel for the Receiving Party may apply for authorization under
Paragraph 14.3 of the Protective Order, and on any such application, the Designating Party shall
have the burden of showing that: (i) the Discovery Material satisfies the criteria for designation
as OUTSIDE COUNSEL EYES ONLY; and (ii) consent to the disclosure sought was
appropriately withheld.
5.6.

OUTSIDE COUNSEL EYES ONLY Discovery Material may be disclosed under

Paragraph 5.5 to a natural person only if the person at the time of the disclosure is not employed
by, or an agent of or otherwise affiliated with, a competitor, supplier or customer of the
Producing or Designating Party, unless such person is authorized to receive the OUTSIDE
COUNSEL EYES ONLY Discovery Material under Paragraph 5.3(j), (k)(iv), (m), or (n).
5.7.

This Order shall not restrict any attorney who is a qualified recipient under the

terms of Paragraphs 5.3(b) or 5.3(c), 5.4 and 5.5 from rendering advice to his or her client that is
a Party with respect to this Action, and in the course thereof, from generally relying upon his or

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her examination of Protected Material. In rendering such advice or in otherwise communicating
with the client, the attorney shall not disclose directly or indirectly the specific content of any
Protected Material of another Party or Non-Party where such disclosure would not otherwise be
permitted under the terms of this Order.
5.8.

This Order shall not apply to and, thus, does not restrict any Party’s use, for any

purpose, of: (a) its own Protected Material or (b) any documents, things, information or other
material that: (i) at the time of disclosure in this Action is publicly known through no
unauthorized act of such Party; (ii) was lawfully developed or obtained independent of discovery
in this Action or (iii) was obtained or purchased by such Party from a Non-Party under a
confidentiality or other non-disclosure agreement and in a manner that did not breach any preexisting confidentiality obligation. The Party shall have the burden of proving that the use or
disclosure satisfies one or more of these criteria. Any Party with material covered by provisions
5.8(b)(ii) or (iii) may, at its election, designate all or any part of the material that otherwise meets
the provisions of Paragraph 1.4, 1.5 or 1.6 as CONFIDENTIAL, HIGHLY CONFIDENTIAL or
OUTSIDE COUNSEL EYES ONLY for all purposes under this Order, and if so designated, the
material shall be deemed Protected Material under this Order. For the avoidance of doubt,
nothing in this Paragraph shall be construed to permit a Receiving Party to disclose Discovery
Material that has been designated by another Party as CONFIDENTIAL, HIGHLY
CONFIDENTIAL or OUTSIDE COUNSEL EYES ONLY except in accordance with Paragraphs
5.3, 5.4 or 5.5 of this Order.
5.9.

Notwithstanding any other part of this Order, no Party shall disclose any

Discovery Material to any participant in a mock jury proceeding without agreement of the Parties
or further Order of the Court.

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6.

PROCEDURES FOR DISCLOSURE OF “CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL” AND “OUTSIDE COUNSEL EYES ONLY” INFORMATION
6.1.

Every person to whom Protected Material or information contained therein is to

be disclosed, summarized, described, characterized, or otherwise communicated or made
available in whole or in part first shall be advised that the Protected Material or information is
being disclosed pursuant and subject to the terms of this Order.
6.2.

Before disclosure of any Protected Material is made under Paragraphs 5.3, 5.4 or

5.5, the person to whom disclosure is to be made shall execute a copy of the Acknowledgment
and Agreement to be Bound by Stipulated Protective Order (“Agreement”) attached hereto as
Exhibit A; provided that: (a) persons listed in Paragraphs 5.3(c), (d) and (e) shall not be required
to execute Exhibit A and (b) a witness at a deposition may state on the record under oath that he
or she agrees to be bound by this Order to the same extent as provided for in Exhibit A.
6.3.

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person not authorized under this Order, the Receiving Party must
immediately (a) use its best efforts to retrieve all copies or obtain a certification of destruction of
the Protected Material, (b) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, (c) request such person or persons to execute the Agreement
attached as Exhibit A and (d) inform each Designating Party of the unauthorized disclosure.
7.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1.

Application to strike designation: Any Party challenging another Party’s or

person’s designation of Discovery Material as CONFIDENTIAL, HIGHLY CONFIDENTIAL or
OUTSIDE COUNSEL EYES ONLY (the “Challenging Party”) may make, in the manner
prescribed by the Federal Rules of Civil Procedure and the Local Rules, a motion or other
appropriate application to the Court to strike the designation at any time up to the

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commencement of trial. The Challenging Party shall provide written notice to the Designating
Party, identifying the CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL
EYES ONLY Discovery Material whose designation it challenges and setting forth the basis for
the challenge. Within 21 business days of its receipt of written notice of the challenge to its
designation, the Designating Party shall meet and confer with the Challenging Party and these
parties shall make a good faith effort to resolve any dispute concerning the designation by
agreement or stipulation. Failing such agreement or stipulation, the Challenging Party’s motion
or application regarding the challenged material shall be filed under seal and shall identify with
specificity the CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL EYES
ONLY Discovery Material that is the subject of the motion. If such a motion or application is
made, the Designating Party may respond, and all Discovery Material so designated shall
maintain its as-designated CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE
COUNSEL EYES ONLY status pending a determination by the Court as to its appropriate
status. The Designating Party bears the burden to justify the designation challenged.
7.2.

Nothing in this Paragraph 7 shall limit the right of any Party to petition the Court

for an in camera review of any Discovery Material.
8.

EXAMINATION OF WITNESSES
8.1.

The use of Protected Material at any deposition is subject to the limitations

on disclosure provided in Paragraphs 5.3, 5.4 and 5.5.
8.2.

If a deposition witness is examined concerning Protected Material, the

Designating Party shall have the right to exclude from the portion of the examination concerning
such information any person not authorized in accordance with Paragraphs 5.3, 5.4 and 5.5 above
to have access to such material.

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9.

FILING CONFIDENTIAL DISCOVERY MATERIAL
9.1.

If a Party desires to file anything with the Court that previously has

been designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL
EYES ONLY, the Parties shall follow the Court’s procedures with respect to filing under seal.
Regardless of any provision in this Order to the contrary, a Party is not required to file a
document under seal if the Protected Material contained or reflected in the document was so
designated solely by that Party.
10.

PROTECTED MATERIAL OFFERED AT TRIAL
10.1.

The use of Protected Material for the purpose of any hearing or proceeding that is

open to the public, or at trial, will be the subject of future agreement or order as the need
may arise.
11.

INADVERTENT PRODUCTION OF PRIVILEGED MATERIAL
11.1.

If, in connection with this Action, information subject to a claim of attorney-client

privilege, the common interest privilege, work product protection or other legally cognizable
privilege or immunity is inadvertently disclosed (“Disclosed Privileged Information”), the
disclosure of the Disclosed Privileged Information shall not constitute or be deemed a waiver or
forfeiture of any claim of privilege or other protection that a Party would otherwise be entitled to
assert with respect to the Disclosed Privileged Information and its subject matter. The Parties
intend that this provision shall displace the provisions of Fed. R. Evid. 502(b), and that this
provision shall constitute an Order under Fed R. Evid. 502(d).
11.2.

If a Producing Party becomes aware that it has inadvertently produced Disclosed

Privileged Information, the Producing Party will promptly notify each Receiving Party in writing
of the inadvertent production. Within ten (10) business days of receipt of such notice, each Party
to which such notice is directed: (a) must return, sequester or destroy the Disclosed Privileged
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Information and any copies; (b) must not use or disclose the Disclosed Privileged Information
until the claim is resolved; (c) must take reasonable steps to recall the Disclosed Privileged
Information if the Party disclosed it before being notified; and (d) must provide a written
certification of counsel that all such Disclosed Privileged Information has been returned,
sequestered or destroyed. Any notes or summaries referring or relating to any such Disclosed
Privileged Information shall be destroyed or sequestered within the ten (10) business day period
provided for.
11.3. If a Receiving Party receives materials that reasonably appear to be subject to an
attorney-client privilege, the common interest privilege, work product protection or otherwise
protected by a discovery privilege or immunity, the Receiving Party must refrain from further
examination of the materials that may be privileged or protected, and shall immediately notify
the Producing Party, in writing, that the Receiving Party possesses such material.
11.4. Nothing herein shall prevent the Receiving Party from challenging the propriety
of the attorney-client privilege or work product immunity or other applicable privilege
designation by submitting a challenge to the Court. If the underlying claim of privilege or
protection is contested, the Parties shall comply with Fed. R. Civ. P. 26(b)(5)(B) and the
Receiving Party may promptly seek a judicial determination of the matter pursuant to that rule (a
“Privilege Motion”). Any Privilege Motion shall not assert as a ground for granting the motion
the fact or circumstance of the production in this Action of the Discovery Material claimed to
be privileged.
11.5. The Party asserting privilege retains the burden of establishing the privileged or
protected nature of any Disclosed Privileged Information. Nothing in Paragraph 11 shall limit

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the right of any Party to petition the Court for an in camera review of the Disclosed
Privileged Information.
12.

OTHER PROCEEDINGS
If, at any time, any CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE

COUNSEL EYES ONLY Discovery Material in the possession, custody or control of any Party
or person other than the Designating Party is subpoenaed or requested by any court,
administrative agency, legislative body or other person or entity, before producing any
CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE COUNSEL EYES ONLY
Discovery Materials, the Party or person to whom the subpoena or request is directed shall
provide prompt written notice to the original Designating Party. Should the Designating Party
oppose the request for production of such documents or materials, the Party or person to whom
the subpoena or request is directed shall not take any position concerning the propriety of such
request or subpoena or the discoverability of the information sought that is adverse to the
Designating Party unless otherwise ordered by a court of competent jurisdiction. Other than the
obligation to comply with these requirements, this Order is not intended to affect a Party’s
obligation to respond to such a subpoena or request.
13.

CONCLUSION OF THE LITIGATION
13.1.

The provisions of this Order shall continue to be binding after final termination of

this Action. Within sixty (60) days after final conclusion of all aspects of this Action, including
any appeals, any Party and all persons who received (or tendered to any other person) Discovery
Material designated for CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE
COUNSEL EYES ONLY treatment (or any copy thereof) must, at the election of the Receiving
Party, either: (a) return such Protected Material to the Producing Party or (b) certify in writing to
Counsel for the Producing Party that the Receiving Party or such person(s) to whom Protected
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Material had been tendered has destroyed those documents and materials and the portions of all
other material containing or reflecting Protected Material.
13.2. The costs of return of Discovery Material to the Producing Party shall be borne by
the Receiving Party. The costs of destruction of the documents and materials shall be borne by
the Receiving Party. The costs associated with providing the aforementioned certification shall
be borne by the certifying person(s).
13.3. Counsel for the Parties shall be permitted to retain copies of court filings, papers
served in connection with this Action, transcripts (including deposition transcripts), exhibits,
correspondence and work product containing or reflecting CONFIDENTIAL, HIGHLY
CONFIDENTIAL or OUTSIDE COUNSEL EYES ONLY Discovery Material. The Receiving
Party’s reasonable efforts shall not require the return or destruction of materials that (i) are stored
on backup storage media made in accordance with regular data backup procedures for disaster
recovery purposes; (ii) are subject to litigation hold obligations; or (iii) are otherwise required by
law to be retained. Backup storage media need not be restored or destroyed for purposes of
returning or certifying destruction of materials, but any such materials retained in backup storage
media shall continue to be treated in accordance with this Order.
14.

OTHER
Non-waiver: Entering into, agreeing to and/or producing or receiving Protected Material

or otherwise complying with the terms of this Stipulated Protective Order shall not:
a.

Prejudice in any way the rights of any party to object to the production of

any documents or information it considers not subject to discovery, or operate as an admission
by any party that the restrictions and procedures set forth herein constitute adequate protection
for any particular information deemed by any party to be Protected Material;

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b.

Prejudice in any way the rights of any party to object to the relevancy, use,

authenticity or admissibility into evidence of any document, testimony or the evidence subject to
this Stipulated Protective Order;
c.

Prejudice in any way the rights of any party to seek a determination by the

Court whether any Discovery Material or Protected Material should be subject to the terms of
this Stipulated Protective Order; or
d.

Prevent any party from expressly agreeing to alter or waive the provisions

or protections provided for herein with respect to any particular Discovery Material.
14.2. Protection for Discovery Material Produced by Non-Parties and Absent Class
Members: Any Non-Party or absent member of the putative class producing Discovery Material
or giving deposition testimony in this Action shall adhere to this Order, unless he or she objects
to its terms in writing to Counsel for a Party and/or to the Court within ten (10) days of service of
this Order upon him or her. Counsel in this Action shall have the obligation to inform any NonParty who produces Discovery Material to a Party represented by such Counsel or gives
deposition testimony in response to a subpoena by such Party in this Action of the existence of
this Order and, if requested, to provide a copy of this Order to such person.
14.3. Modification: Stipulations may be made between Counsel for the respective
Parties as to the application of this Order to specific situations, provided that such stipulations
are recorded in writing or contained in the record of any oral proceeding. Nothing contained
herein shall preclude any Party from seeking an Order of the Court modifying or supplementing
this Order.

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Dated: New York, New York
December 2, 2019
BERNSTEIN LIEBHARD LLP

SHEARMAN & STERLING LLP

By: Michael S. Bigin

By: Jerome S. Fortinsky

Michael S. Bigin
Joseph R. Seidman, Jr.
10 East 40th Street
New York, New York 10016
Telephone: [phone]
[e-mail]
[e-mail]

Jerome S. Fortinsky
Jeffrey D. Hoschander
599 Lexington Avenue
New York, New York 10022-6069
Phone: [phone]
[e-mail]
[e-mail]

Lead Counsel for Lead Plaintiff City of
Atlanta Firefighters’ Pension Fund and the
Proposed Class

Counsel for Defendants Taro Pharmaceutical
Industries Ltd., Michael Kalb, and
Kalyanasundaram Subramanian

SO ORDERED
Dated: December 4, 2019

______________________________
Honorable Ona T. Wang
U.S. Magistrate Judge

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EXHIBIT A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER SPEAKES, Individually and
on Behalf of All Others Similarly Situated,
vs.

Plaintiff,

No. 1:16-cv-08318 (ALC) (OTW)

TARO PHARMACEUTICAL INDUSTRIES,
LTD., MICHAEL KALB, and
KALYANASUNDARAM SUBRAMANIAN,
Defendants.

ACKNOWLEDGMENT AND AGREEMENT
TO BE BOUND BY PROTECTIVE ORDER
I, ________________________________________ [print or type full name],
________________________________________________________________[print position of
employment, firm name and full address], declare under penalty of perjury that I have read in its
entirety and understand the Protective Order issued by the United States District Court for the
Southern District of New York on _____________ (ECF No. ________) in the action Speakes v.
Taro Pharmaceutical Industries, Ltd. et al., No. 1:16-CV-08318 (ALC) (OTW) (the “Order”).
I agree to comply with and to be bound by all the terms of the Order. I understand that
Discovery Material designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL or OUTSIDE
COUNSEL EYES ONLY under the Order is being provided to me pursuant to the terms of the
Order. I understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I promise that I will not disclose in any manner any
information or item that is subject to the Order to any person or entity except in strict compliance
with the provisions of the Order.

I further hereby submit to the jurisdiction of the United States District Court for the
Southern District of New York for the purpose of enforcing the terms of the Order, even if such
enforcement proceedings occur after termination of this Action.

Dated: ___________________________________
City and State (or Country) where sworn and signed: _________________________
Printed name: _____________________________
Signature: ________________________________

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