Inventiv Health Consulting, Inc. v. French et al

Filing 28

CONSENT PROTECTIVE ORDER - Signed by US Magistrate Judge Robert B. Jones, Jr on 4/23/2019. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:18-CV-295-D
INVENTIV HEALTH CONSULTING, INC.,
Plaintiff,
v.

CONSENT PROTECTIVE ORDER

ALAND. FRENCH, JR., PRIYA GOG IA,
JASON DEBASITIS, and JIERU ZHENG,
Defendants.

WHEREAS the parties jointly moved the Court for entry of a Consent Protective Order
pursuant to Federal Rule of Civil Procedure 26(c), and
WHEREAS the discovery and pretrial phase of this action may involve disclosures of
trade secrets and other confidential and proprietary business and financial information,
It is HEREBY ORDERED as follows:
1.

SCOPE.

This Order shall govern all pleadings and all forms of discovery

including, but not limited to, testimony given at any deposition in this action, and all designated
answers, documents, and other discovery materials or things disclosed by one party herein to
another whether informally or in response to interrogatories, requests for admissions or request
for pro4uction of documents, now pending or hereafter, any information obtained therefrom
(hereinafter referred to as "Designated Information"), and documents and things provided by
third parties.
2.

RIGHT TO DESIGNATE.

Any party to this action (hereinafter the

"designating party") shall have the right to designate as "Confidential," or "Confidential -

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Attorneys' Eyes Only," any information it believes to constitute trade secrets, or c,onfidential or
proprietary information, which it believes in good faith qualifies for protection under F.R.C.P.
26(a). The parties to this Protective Order agree that marking documents and things with the
legend "Confidential - Attorneys' Eyes Only" shall be an exceptional classification and that the
legend "Confidential - Attorneys' Eyes Only" shall be reserved for only the most highly
sensitive business documents.

Once a party designates material in accordance with this

Protective Order, the parties shall similarly designate all copies thereof.
3.

"CONFIDENTIAL INFORMATION" DEFINED.

The term "Confidential

Information" is defined to include all information, whether or not in writing, of a private, secret,
or confidential
affairs.

natur~

concerning the parties' business, business relationships, or financial

By way of illustration, but not limitation, Confidential Information may include

inventions, products, processes, methods, techniques, formulas, compositions, compounds,
projects, developments, plans, research data, clinical data, financial data, personnel data,
software, documentation, computer programs, trade secrets, customer and supplier lists, contact
information of customers or prospective customers of the parties, names of customers or
prospective customers of the parties, and financial information, technical information, or data
related to products, services, and customers of the parties.

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4.

HOW TO DESIGNATE.
a.

A designating party, in good faith, may designate "Confidential" or

"Confidential - Attorneys' Eyes Only" information by marking each item or page with the
plainly legible words, "Confidential - [name of producing/designating party]," or "Confidential
-Attorneys' Eyes Only- [name of producing/designating party]."
b.

A designating party may also elect to designate information as

"Confidential" or "Confidential - Attorneys' Eyes Only" after production and, in such case, the
designating party shall notify in writing counsel for all other parties who will then so mark the
Designated Information.

Thereafter, counsel for all other parties shall treat the designated

material as "Confidential" or "Confidential - Attorneys' Eyes Only" information, as appropriate,
and shall take reasonable steps to reclaim any such Designated Information which may have
reached the possession of any persons not authorized under this Protective Order to receive such
information.
c.

No party shall be responsible to another party for any use of information

produced and not identified by the producing party as "Confidential" or "Confidential
Attorneys' Eyes Only" in accordance with the provisions of this Protective Order.
d.

Deposition transcripts may be so designated either (1) before the court

reporter transcribes the testimony, in which case each page of the portion of the transcript of the
designated testimony shall be marked "Confidential" or "Confidential - Attorneys' Eyes Only"
by the reporter, as the designating party may direct, or (2) by written notice to the reporter and all
counsel of record, within fifteen (15) days after the court reporter notifies the parties that the
I

transcript has been prepared, in which case all counsel receiving such notice shall be responsible
for marking the copies of the designated transcript in their possession or under their control as

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directed by the designating party. All testimony elicited during depositions, hearings, and other
proceedings shall be deemed "Confidential" until the expiration of fifteen (15) days after
notification by the court reporter that the transcript has been prepared.
The restrictions and obligations set forth herein relating to Confidential materials shall
not apply to any information which the parties agree, or the Court rules, (a) was or becomes
public knowledge other than as a result of disclosure by the receiving party or (b) has come or
shall come into the receiving party's legitimate possession independently of the providing party.
Such restrictions and obligations shall not ht;: deemed to prohibit discussions with any person of
r

any Confidential materials if the parties agree or the Court rules that said person already had or
obtained possession thereof legitimately.
5.

USE OF DESIGNATED INFORMATION. All information produced under

this Protective Order is to be used solely for this action and for no other purposes. After the
effective date of the parties' agreement to the terms of this Stipulated Protective Order, which
shall be deemed the date on which both parties have signed this stipulation, no person may
disclose in public or private, information designated "Confidential" or "Confidential Attorneys' Eyes Only':__, except as set forth in this Protective Order. Persons having access to
"Confidential" and "Confidential - Attorneys' Eyes Only" information shall not disclose or
provide such information to any person not authorized under this Protective Order. However,
nothing contained in this Protective Order shall affect the right of any designating party to
disclose to its officers, directors, employees, or experts information designated solely by it as
"Confidential" or "Confidential - Attorneys' Eyes Only" or to otherwise use and/or disclose its
own designated material as it deems appropriate.

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6.

FILING UNDER SEAL. Each time a party seeks to file under seal any material

subject to this Protective Order, said party shall accompany the request with a motion to seal.
The motion to seal may be filed without a supporting memorandum only if the filing party can
cite a statute, rule, standing order or court order that requires the filing to be sealed. Absent such
authority, the filing party must submit a supporting memorandum of law that specifies: (i) the
exact document or item, or portions thereof, for which the filing under seal is requested; (ii) how
such request to seal overcomes the common law or the First Amendment presumption' to access;
(iii) the specific qualities of the material at issue which justify sealing such material, taking into
account the balance of competing interests in access; (iv) the reasons why alternatives to sealing
are inadequate; and (v) whether there is consent to the motion.
7.

ACCESS TO "CONFIDENTIAL" INFORMATION. Information designated

"Confidential" by a party may be disclosed by the other party, on a need-to-know basis, only to:
a.

the named individual parties, and in-house counsel (and their legal

associates and regularly employed office staffs), partners, officers, directors, or managing agents
for the named corporate parties;
b.

counsel of record for the named parties, their legal associates and regularly

employed office staffs;
c.

independent consulting or trial experts for a receiving party, if, before

such disclosure, each said expert executes an acknowledgment of the terms of this Protective
Order in the form attached hereto as Exhibit A;
d.

court reporters employed by the parties to transcribe deposition testimony

or similar proceedings;

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e.

service contractors (such as document copy services), jury consultants,

and graphic artists;
f.

any person who authored and/or was an identified original recipient of the -

particular Information sought to be disclosed to that person, or any deponent when the examining
attorney has a good faith basis to believe the deponent is aware of the particular Designated
Information sought to be disclosed;

g.

the Court and those employed by the Court; and

h.

such other persons as heryafter may be designated by written agreement of

all parties in this action or by order of the Court, such order obtained on noticed motion (or on
shortened time as the Court may allow), permitting such disclosure.
The parties ,hereby also agree that documents marked "Confidential" may be used at trial
.
and shown to the jury, if any, without the necessity of a noticed motion to that effect.

8.

ACCESS

TO

"CONFIDENTIAL

-

ATTORNEYS'

EYES

ONLY"

INFORMATION. Information designated "Confidential - Attorneys' Eyes Only" by a party
may be disclosed by the other party, on a need-to-know basis, only to:
a.

in-house counsel for the named parties, thefr legal associates ~nd regularly

employed office staffs;
b.

counsel of record for the named parties, their legal associates and regularly

employed office staffs;
c.

independent

consultin~

or trial experts for a receiving party, if, before

such disclosure, each said expert executes an acknowledgment of the terms of this Protective
Order in the form attached hereto as Exhibit A;

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d.

court reporters employed by the parties to transcribe deposition testimony

or similar proceedings;
e.

service contractors (such as document copy services), jury consultants,

and graphic artists;
f.

any person who authored and/or was an identified original recipient of the

particular Information sought to be disclosed to that person, or any deponent when the examining
attorney has a good faith basis to believe the deponent is aware of the particular Designated
Information sought to be disclosed;
g.

the Court and those employed by the Court; and

h.

such other persons as hereafter may be designated by written agreement of

all parties in this action or by order of the Court, such order obtained on noticed motion (or on
shortened time as the Court may allow), permitting such disclosure.
The parties hereby also agree that documents marked "Confidential - Attorneys' Eyes
Only" may be used at trial and shown to the jury, if any, without the necessity of a noticed
motion to that effect.
9.

ACKNOWLEDGMENT OF ACCESS TO DESIGNATED INFORMATION.

Before obtaining access to any "Confidential" or "Confidential - Attorneys' Eyes Only"
information covered by this Protective Order, each person, other than counsel (including a
party's in-house counsel), their legal associates and regularly employed office staffs, who are
permitted by the parties to have access to such information under this Protective Order must
signify assent to the terms of this Order by executing an acknowledgment indicating that he or
she has read and understood this Protective Order and agrees to be bound by its terms, in the
form attached hereto as Exhibit A.

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10.

EXCLUSION OF UNAUTHORIZED PERSONS.

If any party intends to

summarize, discuss, or othe1wise use "Confidential" or "Confidential - Attorneys' Eyes Only"
information at any deposition, hearing, or the trial of this action, all persons, other than those
entitled to access to such information, shall be excluded from attendance at the deposition,
hearing, or trial of this action, unless the parties otheiwise agree in writing, or the Court
otheiwise orders. The parties agree that partners, officers, directors, or managing agents of the
other party shall not be excluded from any portion of a trial or hearing except as absolutely
necessary.

11.

DESIGNATION NOT DETERMINATIVE OF STATUS. The designation of

information as "Confidential" or "Confidential - Attorneys' Eyes Only" shall not determine,
affect, or otheiwise constitute an admission or permit an inference of any other party about
whether such information comprises a trade secret, confidential, or proprietary information. No
party shall be obligated to challenge the propriety of such designation by any other party at the
time of receipt of such information, and a failure to do so shall not preclude a later challenge to
the propriety of the designation.

However, all material designated as "Confidential" or

"Confidential - Attorneys' Eyes Only" shall remain designated as such until the Court rules to
the contrary or until the designating party agrees in writing to withdraw or change the
designation.
This Protective Order shall not foreclose a party from moving for an Order that any
materials designated as "Confidential" or "Confidential - Attorneys' Eyes Only" are not, in fact,
confidential, or that the materials should not be given the designation "Confidential - Attorneys'
Eyes Only" instead of "Confidential." In any such motion, the party asserting the confidentiality

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of the materials at issue shall bear the burden of proof of the need for confidentiality or the need
for the "Confidential -Attorneys' Eyes Only" designation.
12.

DISCLOSURE TO AUTHOR OR ADDRESSEES.

Nothing herein shall

prohibit a party, or its counsel, from disclosing a document which has been labeled
"Confidential" or "Confidential - Attorneys' Eyes Only" to the person who is the author or \
addressee of such document.
13.

CUMULATIVE PROTECTION. This Protective Order shall not abrogate or

diminish any contractual, statutory, common law, or other legal obligation or right of any party
or person concerning trade secret, confidential, or proprietary information. By stipulating to the
entry of this Protective Order, no party shall waive any right to assert a claim of privilege,
relevance, or other grounds for not producing information called for. Access to such information
shall be allowed by separate agreement of the parties, or by order of the Court.
'

'

14.

RIGHT TO ADDITIONAL PROTECTION. Nothing in this Protective Order

shall be construed to preclude any party or third party from seeking and obtaining, on an
appropriate showing, different or additional protection for any information or relief from any
provision of this Protective Order; nor shall this Protective Order preclude any party from
claiming that any information designated hereunder is not entitled to the designation originally
provided.
15.

FINAL DISPOSITION. Upon final disposition of this action, and request of the

designating or producing party, all Designated Information provided to a receiving party, shall be
returned to the designating or producing party, except that outside counsel may retain a copy of
any Designated Information in its litigation files. The return of trial exhibits by the Court shall
be governed by Local Civil Rule 79.1, E.D.N.C.

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16.

The terms of this Protective Order shall not end upon termination of this action,

except by written stipulation executed by counsel of record for each designating party, or by an
order of the Court for good cause.
17.

The parties have agreed to be bound by the terms of this Stipulated Protective

Order whether or hot it is entered as an Order of the Court.

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Respectfully submitted this the 22nd day of April 2019.

INVENTIV HEALTH CONSULTING, INC.,
By its attorneys,

Isl Russell Beck
Russell Beck*, BBONo. 561031
[e-mail]
Stephen D. Riden, BBO No. 644451
[e-mail]
1
Hannah T. Joseph*, BB0 No. 688132
[e-mail]
BECK REED RIDEN LLP
155 Federal Street, Suite 1302
Boston, Massachusetts 02110
Phone: [phone]
Fax: [phone]
* Pro Hae Vice Motions to be Filed

ALAND. FRENCH, JR., PRIYA GOG IA, JASON
DEBASITIS, and JIERU ZHENG,
By their attorneys,

Isl Melanie Black Dubis
Melanie Black Dubis, N.C. State Bar No. 22027
Catherine R.L. Lawson, N.C. State Bar No. 44574
PARKER POE ADAMS & BERNSTEIN LLP
301 Fayetteville Street, Suite 1400
Raleigh, NC 27601
Phone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail] ·

ORDER
This Court hereby accepts and approves the Consent Protective Order set forth above.
SIGNED this~ day of April, 2019.

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Exhibit A
NONDISCLOSURE AGREEMENT

I,
, do solemnly swear that I am
fully familiar with the terms of the Stipulated Protective Order Re Confidential Information
entered in inVentiv Health Consulting, Inc. v. Alan D. French, Jr., et al., United States District
Court for the Eastern District of North Carolina, Case No. 5:18-cv-295, and hereby agree to
comply with and be bound by the terms and conditions of said Order unless and until modified
by further Order of this Court. I hereby consent to the jurisdiction of said Court for purposes of
enforcing this Order.

DATED:

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