Eshelman v. Auerbach et al

Filing 59

Joint Stipulated PROTECTIVE ORDER - Signed by U.S. Magistrate Judge Robert B. Jones, Jr on 9/26/2016. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-cv-00018-D

FREDRIC N. ESHELMAN,
Plaintiff,

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v.
PUMA BIOTECHNOLOGY, INC.
Defendant.

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Joint Stipulated Protective Order

In accordance with the stipulation of the Parties, for good cause shown and finding no
adverse effect upon the public interest, the Court enters the following protective order:
1.

This Protective Order is not intended to address discovery objections to produce,

answer, or respond on the grounds of attorney-client privilege or work product immunity, nor to
preclude either Party from seeking further relief or protective orders from the Court as may be
appropriate under the Federal Rules of Civil Procedure. Notwithstanding any provision of this
Order, any Party may seek additional protections from the Court pursuant to Rule 26( c)(7) with
respect to particular classes of information, including that such information not be revealed or
revealed only in a way other than that designated herein.
2.

Any information or materials produced by any Party or nonparty as part of

discovery in this action may be designated by such Party or nonparty as "CONFIDENTIAL" under
the terms of this Protective Order. Confidential Information may be found in, without limitation,
all or any of the following materials:
a)

Documents, depositions, or testimony, responses to written discovery, and
any other information or materials produced or otherwise made available to
the Parties in this action;

b)

c)

3.

Copies, extracts, reports, studies, notes, complete or partial summaries, and
other documents or materials made or prepared from Confidential
Information; and
Transcripts, exhibits, motions, briefs, memoranda, and other pleadings or
writings that summarize or otherwise disclose Confidential Information.

As a general guideline, information or materials designated as "CONFIDENTIAL"

shall be those things that may be disclosed to the Parties for the purposes of the litigation only, but
which must be protected against disclosure to nonparties. Absent a specific order by this Court,
once designated as "CONFIDENTIAL," such designated information shall be used by the Parties
solely in connection with this litigation, and not for any business, competitive, or governmental
purpose or function, and such information shall not be disclosed to anyone except as provided
herein.
4.

As a further general guideline, information or materials designated as

"CONFIDENTIAL" shall be those things of a proprietary business or technical nature that might
be of value to a competitor or potential customer of the Party or nonparty holding the proprietary
rights thereto, and that must be protected from disclosure. Confidential Information may also
include, without limitation:
a)

Information protected or prohibited from disclosure by law;

b)

Information that reveals competitive or proprietary business information
and/or trade secrets, including without limitation, confidential inventions,
methods and practices, business and marketing strategies, research and
development information, pricing information, responses to requests for
proposal and related materials, and any information that may have a
competitively adverse or other substantially detrimental effect on the
designating Party or a third party if it is disclosed;

c)

Research, technical, commercial, or financial information that the Party has
maintained as confidential;

d)

Internal policies, procedures, analyses, or investigations that the Party has
maintained as confidential;

e)

Financial information concerning any individual, entity, or institution;

f)

Personal identity information;
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g)
h)
5.

Income tax returns (including attached schedules and forms), W-2 forms,
I 099 forms and other financial statements and data; and
Non-public information.

Nothing contained herein shall impose any restrictions on the use or disclosure by

a Party of documents, information or material designated as "CONFIDENTIAL" that was obtained
lawfully by such Party independently of any proceedings in this action, or which:
a)
b)

is or becomes publicly known through no fault or act of such Party; or

c)

6.

was already known to such Party by lawful means prior to acquisition from,
or disclosure by, the other Party in this action;

is rightfully received by such Party from a third party which has authority
to provide such information or material without restriction as to disclosure.

The designation of information or material as "CONFIDENTIAL" for purposes of

this Protective Order shall be made in the following manner by the Party or nonparty seeking
protection:
a)

in the case of documents, exhibits, briefs, memoranda, interrogatory
responses, responses to requests for admission, or other materials (apart
from depositions or other pretrial or trial testimony): by affixing the legend
"CONFIDENTIAL," as appropriate, to at least the first page of any
document containing any Confidential Information or material at the time
such documents are produced or such information is disclosed, or as soon
thereafter as the Party or nonparty seeking protection becomes aware of the
confidential nature of the information or material disclosed and sought to
be protected hereunder;

b)

in the case of pretrial or trial testimony or information disclosed at a
deposition, including exhibits: (i) by a statement on the record, by counsel,
during such deposition or other pretrial or trial proceeding that the entire
transcript or a portion thereof shall be designated as "CONFIDENTIAL,"
as appropriate, hereunder; or (ii) by notifYing counsel for all Parties in
writing, within fifteen (15) days after the Party's receipt of the transcript, of
the specific pages and lines of the transcript that contain Confidential
Information. During a deposition, the deponent or his counsel, or any other
counsel of record present at the deposition, may invoke the provisions of
this Protective Order in a timely manner, giving adequate warning to
counsel for the Party or nonparty that testimony about to be given is deemed
"CONFIDENTIAL." Unless so designated or agreed, any confidentiality is

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waived after the expiration of the 15-day period unless otherwise stipulated
or ordered. The Parties may modify this procedure for any particular
deposition or proceeding through agreement on the record at such
deposition or proceeding or otherwise by written stipulation, without further
order of the Court. If any document or information designated as
"CONFIDENTIAL" is used during the course of a deposition, that portion
of the deposition record reflecting such Confidential Information shall be
sealed and stamped with the designated degree of confidentiality, and
access thereto shall be limited pursuant to the other terms of this Protective
Order.
7.

Materials designed "CONFIDENTIAL," copies or extracts therefrom, and any

summary, description, or report containing such information, may be disclosed only to the
following persons:
a)

All Parties who are natural persons and not more than three designated
employees of each Party, whose assistance is needed by counsel for the
purposes of this litigation;

b)

Any person prepared and/or called as a witness, with respect to information
which that person had lawfully received or authored prior to and apart from
this action;

c)

The Court, persons employed by the Court, and stenographers transcribing
testimony or argument at a hearing, trial, or deposition in this action or any
appeal therefrom;

d)

Independent consultants and experts who are not current employees of any
Party in this matter and who have been retained by counsel to provide
assistance in this action, with disclosure only to the extent necessary to
perform such work;

e)

Graphics or design services personnel retained by counsel for purposes of
preparing demonstrative or other exhibits for depositions, trial, or other
court pleadings in this action;

f)

Non-technical jury or trial consulting services retained by counsel;

g)

Document imaging and database services personnel retained by counsel,
and consultants retained by counsel to set up, maintain, and/or operate
computer systems or litigation databases, or to convert data for inclusion in
such databases; and

h)

The Parties' outside counsel of record in this action, photocopy services
personnel retained by counsel, their paralegal assistants, law clerks, and

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stenographic and clerical employees who are assisting in the prosecution,
defense, and or appeal of this action.
8.

No Confidential Information shall be revealed or disclosed, in whole or in part,

directly or indirectly, to any individual until that individual has first confirmed their understanding
and agreement to abide by the terms of this Protective Order and has duly completed and signed
an undertaking in the form attached hereto as Exhibit A. A copy of the executed undertaking shall
be provided to the adverse Party(ies) prior to the individual having access to said Confidential
Information. Copies of each executed undertaking shall be retained, until the conclusion of this
action, including all appeals, by counsel for each Party who intends to or does disclose to such
individual any Confidential Information.
9.

The provisions of this Order shall not affect, and this Order does not limit, the use

or admissibility of Confidential Information (or references to that material) as evidence at trial, or
during a hearing or similar proceeding in this action, or as part of the record on appeal, provided
that either Party may seek an appropriate Court Order to protect Confidential Information.
10.

The filing Party shall comply with the procedures set forth in Local Civil Rule 79.2

and Section T of the Electronic Case Filing Administrative Policies and Procedures Manual with
respect to the information that the filing Party designates as "CONFIDENTIAL." If a filing Party
seeks to file information that another Party has designated as "CONFIDENTIAL," then the filing
Party shall file the proposed sealed document with a docket entry that identifies the document as
a proposed sealed document, and shall include a legend on the first page of the document that
indicates that the document contains information that the other Party has designated as
"CONFIDENTIAL." The designating Party shall have 5 business days from the date of such filing
in which to file a motion to seal and any supporting memorandum.
11.

If a Party disagrees with the designation of any information as Confidential

Information, such Party shall first make its objection known to the designating Party or non-party
and request a change of designation. The Parties and any producing non-party shall first confer
and try to resolve such dispute in good faith on an informal basis. If the dispute cannot be resolved,

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the Party challenging the designation may request appropriate relief from the Court no sooner than
ten ( 10) days following the service of a written notice of disagreement. The burden of proving
that information has been properly designated as Confidential Information is on the Party or nonparty making such designation. Until there is a determination by the Court, the information at
issue shall be treated as Confidential Information (as designated) and subject to the terms of this
Order. Any failure to object to any material being designated as Confidential Information shall
not be construed as an admission by any non-designating Party that the material constitutes or
contains a trade secret or other Confidential Information.
12.

Nothing in this Order shall prevent disclosure beyond the terms of this Order ifthe

Party designating Confidential Information consents in writing to such disclosure, or if the Court
orders or permits such disclosure.
13.

The inadvertent production in discovery of any privileged or otherwise protected

or exempted information shall not be deemed a waiver or impairment of a claim of privilege or
protection, provided that the producing Party shall promptly provide notice to the receiving Party
in writing. Upon receiving written notice from the producing Party, such information shall be
returned to counsel for the producing Party and the receiving Party shall not use such information

until further Court Order. As soon as the receiving Party becomes aware of the inadvertent
production, the information must be treated as if it had been timely designated under this Protective
Order, and the receiving Party must endeavor in good faith to obtain all copies of the document
which it distributed or disclosed to persons not authorized to access such information by the terms
of this Protective Order, as well as any copies made by such persons. The Parties may seek the
Court's intervention in accordance with Local Rule 37.1.
14.

All "CONFIDENTIAL" information and material covered by this Protective Order

shall be kept in secure locations, and access to those facilities shall be permitted only to those
designated persons set forth in Paragraphs 5 and 6 above as persons properly having access thereto.

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15.

All counsel for the Parties who have access to information or material designated

as "CONFIDENTIAL" under this Protective Order acknowledge they are bound by this Order and
submit to the jurisdiction of this Court for purposes of enforcing this Order.
16.

Entering into, agreeing to, and/or producing or receiving information or material

designated as "CONFIDENTIAL," or otherwise complying with the terms of this Protective Order
shall not:
a)

operate as an admission by any Party that any particular information or
material designated as "CONFIDENTIAL" contains or reflects trade
secrets, proprietary or commercially sensitive information, or any other type
of Confidential Information;

b)

operate as an admission by any Party that the restrictions and procedures set
forth herein constitute or do not constitute adequate protection for any
particular information deemed by any Party to be "CONFIDENTIAL";

c)

prejudice in any way the rights of the Parties or any non-party to object to
the production of documents they consider not subject to discovery;

d)

prejudice in any way the rights of any Party to object to the authenticity or
admissibility into evidence of any document, testimony or other evidence
subject to this Protective Order;

e)

prejudice in any way the rights of a Party to seek a determination by the
Court whether any information or material should be subject to the terms of
this Protective Order;

f)

prejudice in any way the rights of a Party or non-party to petition the Court
for a further protective order relating to any purportedly Confidential
Information;

g)

prevent the Parties to this Protective Order from agreeing in writing or on
the record during a deposition or hearing in this action to alter or waive the
provisions or protections provided for herein with respect to any particular
information or material.

h)

Shift any evidentiary burdens with respect to the protection or production
of documents or information in this action; or

i)

prevent the Parties from contacting or obtaining testimony from witnesses
identified in documents designated as "CONFIDENTIAL" under this
Protective Order.

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17.

In the event that any of the Parties: (a) is subpoenaed in another action, (b) is served

with a demand in another action to which it is party, or (c) is served with any other legal process
by a person not a party to this litigation, and is requested to produce or otherwise disclose discovery
material that is designated as Confidential Information, the Party subpoenaed or served in
accordance with this paragraph shall object to production of the Confidential Information and shall
give prompt written notice to the producing Party. If the person seeking access to the Confidential
Information takes action against the Party covered by this Order to enforce such a subpoena,
demand, or other legal process, it shall respond by setting forth the existence of this Order. Nothing
in this Order shall be construed as precluding production of Confidential Information covered by
this Order in response to a lawful court order.
18.

This Order shall continue to be binding throughout and after the conclusion of this

litigation, including all appeals. Within sixty (60) days of settlement or final adjudication, all
produced documents designated as "CONFIDENTIAL" shall be deleted, destroyed, or returned to
the producing Party. The Parties need not delete, destroy, or return any motions, briefs, deposition
transcripts, deposition exhibits, hearing transcripts, trial exhibits, emails of counsel of record, or
attorney work product that may contain, reflect, or summarize Confidential Information, but shall
maintain the confidentiality of such documents indefinitely.
19.

This Order shall survive the termination of this litigation. After the termination of

this litigation, this Court shall retain jurisdiction to enforce this Order.
20.

The Parties agree to be bound by, and are entitled to rely upon, the terms of this

Protective Order once it has been signed by the Parties' counsel, whether or not the Protective
Order has been signed or entered by the Court.
21.

Third parties producing discovery in this litigation who agree to be bound by the

terms of this order may avail themselves of the terms of this Order. By so doing, such parties
acknowledge and agree that they are subject to this Court's jurisdiction for purposes of enforcing
the terms of this Order.

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22.

The Court may modify and amend this order at any time. Each of the Parties hereto

shall be entitled to seek modification of this Protective Order by application to the Court on notice
to the other Party hereto for good cause.

IT IS SO ORDERED.

Date: September 26

United States Magistrate Judge

, 2016.

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This 21st day of September, 2016.

Respectfully Submitted,

Is/ Pressly M. Millen

Is/ Megan L. Meier
Andrew K. Me Vey

Pressly M. Millen
Womble Carlyle Sandridge & Rice, PLLC
Post Office Box 831
Raleigh, NC 27602
Telephone: [phone]
Facsimile: [phone]
Email: pmillen @wcsr .com
Brant W. Bishop, P.C.
Lori Alvino McGill
Paul J. Sampson
Wilkinson, Walsh+ Eskovitz LLP
1900 M Street, NW, Suite 800
Washington, DC 20036
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Email: psampson @wilkinsonwalsh.com
Sean Eskovitz
Wilkinson, Walsh + Eskovitz LLP
11726 San Vicente Blvd., Ste. 600
Los Angeles, CA 90049
Telephone: [phone]
Facsimile: [phone]
Email: seskovitz@ wilkinsonwalsh.com

North Carolina State Bar No.20217
(Local Civil Rule 83.1 Counsel)
Murchinson, Taylor & Gibson PLLC
16 North Fifth Avenue
Wilmington, NC 28401-4537
Telephone: [phone]
Email: amcvey@ murchisontaylor.com
Thomas A. Clare (of counsel)
Elizabeth M. Locke (of counsel)
Megan L. Meier (of counsel)
Dustin A. Pusch (of counsel)
CLARE LOCKE LLP
902 Prince Street
Alexandria, VA 22314
Telephone [phone]
Email: [e-mail]
Email: [e-mail]
Email: meg an @clarelocke.com
Email: dustin @clarelocke.com

Attorneys for:
Dr. Fredric Eshelman

Attorneys for Puma Biotechnology, Inc.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
FILE NO.: 7:16-cv-00018-D
FREDRIC N. ESHELMAN,
Plaintiff,
v.
ALAN H. AUERBACH and PUMA
BIOTECHNOLOGY, INC.,

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Defendants.
_______________________________ )

EXHIBIT A
I,
a.

, hereby declare that:
I have carefully read and understand the Joint Stipulated Protective Order (the

"Order") of the United States District Court for the Eastern District of North Carolina, in the
above-captioned matter.
b.

I agree that I will be bound by and will comply with all of the provisions of this

Order and I will make no disclosures of Confidential Information to any person who is not
permitted to have access to such Confidential Information by this Order, as applicable.
c.

Within sixty (60) days of the final determination of the action, I will destroy all

Confidential Information received by me or I will return such Confidential Information to the
producing party.

If I destroy such Confidential Information, I agree to send a letter to the

producing party confirming the same.
d.

I understand that a violation of this undertaking is punishable as a contempt of

court and hereby submit to the jurisdiction of this Court for the purpose of enforcement of this
Order.

e.

I declare under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct.

Executed on:

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[signature]

[print or type name]
Title:

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Business Affiliation:
Address:

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Email:

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Phone:

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