Adams v. Medtronic Minimed, Inc. et al
Filing
34
STIPULATION AND PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 3/8/2016. (cbb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:15-CV-071-RLV-DCK
BETTY ADAMS
Plaintiff,
v.
MEDTRONIC MINIMED, INC. a Delaware
corporation; MEDTRONIC, INC., a
Minnesota corporation; and DOES 1 through
100, inclusive,
STIPULATION AND
PROTECTIVE ORDER
Defendants.
IT IS HEREBY STIPULATED AND AGREED by and between the parties to this action,
Betty Adams (“Plaintiff”) and Defendants Medtronic MiniMed, Inc. and Medtronic, Inc.
(collectively, “Medtronic” or “Defendants”), and their undersigned counsel as follows:
1.
All materials and copies, transcriptions, or other reproductions of materials
(hereinafter “The Materials”) produced in this action pursuant to the discovery provisions of the
Federal Rules of Civil Procedure, the Local Rules for the Western District of North Carolina, or
by order of this Court, or otherwise, and which contain, describe, identify or refer to trade secrets,
information of a confidential, proprietary or sensitive nature, or information subject to any
applicable data privacy statutes and regulations (e.g., the Health Insurance Portability and
Accountability Act (“HIPAA”) and similar statutes and regulations), shall be stamped
“CONFIDENTIAL” by the producing party and shall be subject to the provisions of this
Stipulation and Protective Order.
2.
Counsel for a party to this action may challenge the “CONFIDENTIAL”
designation made by the producing party of any of The Materials by first requesting a “meet and
confer” with the producing party in an attempt to amicably resolve the challenge. In the event
agreement cannot be reached, the challenging party may file a motion with this Court, and in such
motion shall describe with specificity the particular materials for which the designation is being
challenged and set forth with specificity any and all grounds for the challenge. It is agreed that
the party seeking to maintain The Materials as “CONFIDENTIAL” bears the burden of proof as
to such designation. The Materials designated “CONFIDENTIAL” shall continue to be treated as
such and subject to the provisions of this Stipulation and Protective Order pending determination
by the Court of the merits of any such a challenge.
3.
The Materials designated “CONFIDENTIAL” shall be used for purposes of this
action only and for no other action or purpose whatsoever and shall not, without leave of this Court
or as set forth in paragraph 4 below, be disclosed to any person or entity other than this Court
(under seal) and the parties to this action and their counsel.
4.
The disclosure by counsel or co-counsel for a party to this action of The Materials
to experts or other consultants retained by the disclosing counsel to assist counsel in the
adjudication of this action, and for no other purpose, shall not constitute a violation of, or a waiver
of, the protections afforded by this Stipulation and Protective Order so long as the person to whom
disclosure is made has executed an Affidavit in the form attached hereto as Exhibit A and a list is
maintained of the “CONFIDENTIAL” materials which were disclosed to that person. A copy of
each executed Affidavit in the form attached hereto as Exhibit A shall be maintained by counsel
for Plaintiff or Defendants, respectively. If and when an expert is disclosed by a party, if requested,
that party shall provide opposing counsel with a copy of the heretofore referenced executed
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Affidavit. Paralegals and clerical staff employed by the disclosing counsel’s office shall not be
required to execute an Affidavit. Except for general counsel and in-house litigation counsel for
the non-designating parties, together with their respective associate attorneys and office personnel
employed or engaged in the preparation for, or aiding in the trial of, this action,
“CONFIDENTIAL” materials cannot be disclosed or shared with any other legal counsel who
have not entered an appearance as co-counsel in this action.
5.
In the event The Materials themselves, or the contents of The Materials designated
“CONFIDENTIAL” are to be identified, discussed, or disclosed during a deposition taken in this
action of any person or entity other than those persons or entities described in paragraphs 3 and 4
above, the deponent shall be required to acknowledge on the record, before any identification,
discussion, or disclosure of The Materials occurs that he or she has been advised of and has agreed
to be bound by the terms of this Stipulation and Protective Order.
6.
All portions of any deposition transcript taken in this action wherein The Materials
themselves, or the contents of The Materials designated “CONFIDENTIAL” are identified,
discussed, or disclosed, shall also be designated as “CONFIDENTIAL” and shall be subject to the
terms of this Stipulation and Protective Order.
7.
In the event that counsel for a party wishes to identify, discuss, or disclose The
Materials or the contents of The Materials designated “CONFIDENTIAL” during the course of
pre-trial or trial proceedings, he or she shall, prior to each identification, discussion, or disclosure
make reference to the confidential nature thereof to the Court and to counsel for the party which
produced The Materials; and counsel for the producing party may at that time, or after such
identification, discussion, or disclosure, request that The Materials or the contents of the Materials
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designated “CONFIDENTIAL” be filed under seal with this Court and be subject to the terms of
this Stipulation and Protective Order.
8.
In the event The Materials designated as “CONFIDENTIAL” or transcripts or other
things wherein The Materials or the contents of The Materials designated “CONFIDENTIAL” are
identified, discussed, or disclosed, are filed or are otherwise deposited with the Clerk of this Court,
such materials shall be filed or deposited in a sealed envelope bearing the following designation:
“CONFIDENTIAL:
THE CONTENTS OF THIS ENVELOPE ARE
SUBJECT TO A PROTECTIVE ORDER OF THIS COURT AND SHALL
NOT BE SHOWN TO ANY PERSONS OTHER THAN A JUDGE OF THIS
COURT OR AN ATTORNEY IN THIS CASE.”
9.
Counsel for a party shall not, in the presence of the jury, comment on the reasons
or motivation for designating The Materials as “CONFIDENTIAL” without first having obtained
permission of the Court to do so.
10.
This Stipulation and Protective Order shall be binding throughout and after final
adjudication of this action, including but not limited to, final adjudication of any appeals and
petitions for extraordinary writs.
11.
At the conclusion of this matter and after all final appeals have been taken, counsel
for the party receiving The Materials shall execute an Affidavit in the Form attached hereto as
Exhibit B, and will abide by any order of the Court regarding the ultimate disposition of The
Materials upon the completion of litigation.
12.
The inadvertent production or disclosure of any privileged or protected documents
or materials (hereinafter the “Privileged Materials”) protected by the attorney-client privilege, the
attorney work-product doctrine, a joint-defense privilege, or any other applicable privilege,
immunity, or protective doctrine (collectively a “Privilege”) shall not constitute, or be considered
as a factor suggesting, a waiver or impairment of any claims of such Privilege. In the event of
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inadvertent production or disclosure, the producing party may provide written notice that
Privileged Materials have been inadvertently produced or disclosed. Within seven (7) days of
receipt of such notice, any person that has received such Privileged Materials shall return to the
producing party all such Privileged Materials and any copies thereof in its possession and shall
make reasonable efforts to reclaim and return all such Privileged Materials.
13.
Any party receiving materials that, on their face, appear to be covered by a
Privilege, shall provide prompt notice of the disclosure to the producing party to afford the
producing party the opportunity to designate the materials as inadvertently produced Privileged
Materials subject to the claw-back provision in Paragraph 12.
14.
Nothing herein shall prevent any party from seeking further or greater protection
from the Court with respect to the treatment of Privileged Materials in connection with this action,
and nothing herein shall be construed to affect the evidentiary admissibility of any documents,
testimony, information or other materials.
15.
Nothing in this Stipulation and Protective Order shall be construed to preclude any
party from otherwise seeking a modification of this Stipulation and Protective Order.
16.
Nothing in this Stipulation and Protective Order shall be construed to prevent this
Court from disclosing any facts relied upon by it in making or rendering any finding, ruling, order,
judgment or decree of whatever description.
17.
The ultimate disposition of The Materials designated as “CONFIDENTIAL” shall
be subject to a final order of the Court upon the completion of litigation.
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Dated: March ___, 2016
HOUSSIERE, DURANT & HOUSSIERE, LLP
By:
Charles R. Houssiere, III (admitted pro hac vice)
Jonathan M. Brooks
Suite 800
1990 Post Oak Boulevard
Houston, TX 77056-3812
Email: choussiere@hdhtex.com
jmbrooks@hdhtex.com
-andWalter E. Daniels III
DANIELS LAW FIRM, P.C.
Suite 502
14 South Park Square
Asheville, NC 28801
Email: walter@danielslawfirm.net
ATTORNEYS FOR PLAINTIFF
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Dated: March 2, 2016
MASLON LLP
By: s/ D. Scott Aberson
D. Scott Aberson (admitted pro hac vice)
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140
Telephone: 612-672-8200
Email: scott.aberson@maslon.com
-andSamuel H. Poole, Jr.
Todd A. King
CRANFILL SUMNER & HARTZOG LLP
Suite 200
2907 Providence Road
Charlotte, NC 28211
Telephone: 704-332-8300
Email: shp@cshlaw.com
tak@cshlaw.com
ATTORNEYS FOR DEFENDANTS MEDTRONIC
MINIMED, INC. AND MEDTRONIC, INC.
IT IS SO ORDERED.
Signed: March 8, 2016
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EXHIBIT A
AFFIDAVIT OF ______________________
STATE OF ___________________ )
) ss:
COUNTY OF __________________ )
Before me, the undersigned Notary Public, in and for said County and State, personally
appeared __________________________, who after first being duly sworn, states as follows:
1.
My name is __________________. I am over the age of 18 years and am a resident
of _____________ County, __________________. I make this Affidavit based upon my personal
knowledge, and I am competent to testify to the matters stated herein.
2.
I am aware that a Protective Order has been entered in Adams v. Medtronic, Inc., et
al., Case No. 5:15-cv-00071-RLV-DCK.
3.
A copy of that Protective Order has been shown to me, and I have read and
understand its contents.
4.
By signing this Affidavit, I promise that I will use the materials and contents of the
materials designated “CONFIDENTIAL” pursuant to the above-described Protective Order for the
purpose of assisting counsel for a party to the above-described civil action in the adjudication of
that action and for no other purpose.
5.
By signing this Affidavit, I also promise that I will not communicate, disclose,
discuss, identify, or otherwise use materials or the contents of materials designated
“CONFIDENTIAL” pursuant to the above-described Protective Order with, to, or for any person
or entity other than the Court, a party to the above-described civil action, counsel for a party to the
above-described civil action, including other counsel, paralegals, and clerical staff employed in
his or her office, persons permitted by the above-described Protective Order to attend depositions
taken in the above-described civil action, and persons or entities assisting such counsel who have
executed an affidavit in the same form as this Affidavit.
6.
By signing this Affidavit, I also promise that I will not copy, transcribe, or
otherwise reproduce, or cause to be copied, transcribed, or otherwise reproduce, by any means
whatsoever, any materials or the contents of any materials designated “CONFIDENTIAL”
pursuant to the above-described Protective Order except to the extent to which I am directed to do
so by counsel for a party to the above-described civil action, in which case all such copies,
transcriptions, or reproductions shall be made solely for my own use in connection with my work
in the above matter. I further promise at the conclusion of this case to deliver upon request all
materials (originals and copies) designated “CONFIDENTIAL” to the counsel who originally
directed that said materials be provided to me.
7.
I understand that, by signing this agreement, I am agreeing to subject myself to the
jurisdiction of this Court.
8.
I understand that any use or distribution of the materials or contents of the materials
designated “CONFIDENTIAL” pursuant to the above-described Protective Order in any manner
contrary to the provisions of the Protective Order will subject me, among other things, to the
summary sanctions of this Court for contempt.
FURTHER AFFIANT SAYETH NOT.
Signature of Affiant
Subscribed and sworn to before me,
this ____ day of ______________, 2016.
____________________________________
Notary Public
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EXHIBIT B
AFFIDAVIT OF ______________________
STATE OF ______________
COUNTY OF ____________
)
) ss:
)
Before me, the undersigned Notary Public, in and for said County and State, personally
appeared __________________________, Esq., who after first being duly sworn, states as
follows:
1.
My name is __________________. I am over the age of 18 years and am a resident
of _____________ County, __________________. I make this Affidavit based upon my personal
knowledge, and I am competent to testify to the matters stated herein.
2.
I have requested and received from ____________________ all of the materials,
transcripts, and other things described in the Protective Order which was entered by the Court in
Adams v. Medtronic, Inc., et al., Case No. 5:15-cv-00071-RLV-DCK.
3.
I have either destroyed or have attached hereto all of the materials, transcripts, and
other things, including those materials which were returned to me by ___________________ in
accordance with the preceding paragraph, described in the Protective Order which was entered by
the Court in Adams v. Medtronic, Inc., et al., Case No. 5:15-cv-00071-RLV-DCK.
FURTHER AFFIANT SAYETH NOT.
Signature of Affiant
Subscribed and sworn to before me,
this ____ day of ______________, 2016.
________________________________
Notary Public
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