Meridian Bioscience, Inc. v. Diasorin Inc.

Filing 51

PROTECTIVE ORDER. Signed by Magistrate Judge Karen L. Litkovitz on 9/14/2017. (art)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MERIDIAN BIOSCIENCE INC.,
Plaintiff,
v.

Case No. 1:17-cv-341
Magistrate Judge Karen L. Litkovitz
PROTECTIVE ORDER

DIASORIN INC.,
Defendant.
The Court recognizes that disclosure and discovery activity are likely to
arise that will require the disclosure of information that a party or third party
considers to constitute a trade secret or confidential research, development,
manufacturing, financial, process, marketing, and business information, or other
commercial information within the meaning of Federal Rule of Civil
Procedure 26(c). Good cause exists to protect this information from public
disclosure. In the absence of a suitable protective order safeguarding the
confidentiality of such information, the parties would be hampered in their ability
to produce such information.
Accordingly, the Court ORDERS that the parties shall adhere to the
following:
1.

DESIGNATION OF PROTECTED MATERIAL
1.1

This Order shall govern all information, documents, and other

materials (“Information”) obtained by the parties from one another, or from third
parties, as may be produced or disclosed during the course of this litigation,
including all information copied or derived therefrom, as well as all copies,
excerpts, summaries or compilations thereof, including written discovery requests
authorized by the Federal Rules of Civil Procedure, documents produced pursuant
to requests, answers to interrogatories, deposition transcripts, responses to such
requests for admission, affidavits, declarations, expert reports, and other such
Information, as may be produced or disclosed during the course of this litigation
(collectively, “Litigation Materials”).
1.2

Except as otherwise provided in this Order, any producing party or

third party (“designating party”) may designate any non-public Litigation Material
as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or “HIGHLY
CONFIDENTIAL–CD” (any such Litigation Material that may be so designated
and protected in accordance with the terms of this Order being collectively referred
to as “Protected Material”).
(a)

A designating party may designate as “CONFIDENTIAL” any

Litigation Material that the designating party reasonably and in good faith
believes to be or to contain information that qualifies for protection under
Fed. R. Civ. P. 26(c) used by the designating party in, or pertaining to, its
business and that is not generally known, and which that designating party

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would not normally reveal to third parties or, if disclosed, would require
such third parties to maintain in confidence.
(b)

A designating party may designate as “HIGHLY

CONFIDENTIAL” any Litigation Material that the designating party
reasonably believes was not previously disclosed, and that the designating
party has not alleged was previously disclosed, to the receiving party (or to
any of its affiliates) and reasonably and in good faith believes to be or to
contain highly sensitive: technical, business, or research information relating
to research for and production of current or past products; technical, business,
or research information regarding future products; financial information;
marketing and sales information, such as marketing plans and forecasts,
customer lists, pricing data, cost data, customer orders, and customer
quotations; pending or abandoned patent applications, foreign or domestic;
and such other highly sensitive Litigation Materials that relate to other
information that the designating party reasonably believes is of such nature
and character that disclosure of such Information would be harmful to the
designating party.
(c)

A designating party may designate as “HIGHLY

CONFIDENTIAL–CD” , but may not designate as “HIGHLY
CONFIDENTIAL,” any Litigation Material that the designating party

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reasonably believes was previously disclosed, or alleges to have been
previously disclosed, to the receiving party (or to any affiliate of the
receiving party) and reasonably believes would qualify for designation as
“HIGHLY CONFIDENTIAL” if it had not been so disclosed or so alleged to
have been disclosed; provided, upon entry of this Order, Plaintiff Meridian
Bioscience Inc.’s Preliminary Identification of Trade Secrets, which
Plaintiff’s counsel previously delivered to Defendant’s counsel with the
legend “HIGHLY CONFIDENTIAL (Outside Counsel of Record Eyes Only
Until Entry of Protective Order),” shall be deemed to be designated as
“HIGHLY CONFIDENTIAL–CD.”
1.3

The following Litigation Material of the producing party shall not be

designated or protected under this Protective Order:
(a)

Litigation Material that is in the public domain at the time of

disclosure, including patent file histories, publicly available prior art
publications, catalogs and other advertising materials, press releases, and
publicly-filed financial statements;
(b)

Litigation Material that at any time is made public through no

act of a non-designating party;
(c)

Litigation Material that the designating party has not

undertaken with others to maintain in confidence and that is in the

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possession of or becomes available to the receiving party from a third party
other than through discovery in this action, but only if the receiving party
can show by written documentation that the information independently came
into its rightful possession; or
(d)

Litigation Material that was independently developed by the

receiving party, as reflected by written documentation demonstrated to be in
existence prior to the earlier of (i) production by the party claiming
confidentiality and (ii) the first disclosure by the producing party of the
Litigation Material or any Information reflected in the Litigation Material.
1.4

Any Litigation Materials produced or otherwise provided pursuant to

a discovery request or subpoena, or other Litigation Materials exchanged by the
parties (including discovery responses, letters, and briefs), that a designating party
desires to designate as Protected Material in accordance with the terms of this
Order shall be so designated by marking each page of the document with the
legend “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or “HIGHLY
CONFIDENTIAL–CD” marking other materials with the “CONFIDENTIAL”,
“HIGHLY CONFIDENTIAL” or “HIGHLY CONFIDENTIAL–CD” where
appropriate, and indicating the identity of the producing party (e.g., through the use
of an identifying prefix to the document identification (Bates) number), or the
suffix “-C”, “-HC”, or “-HC-CD” to the filename of a native file, respectively, for

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CONFIDENTIAL, HIGHLY CONFIDENTIAL, or HIGHLY CONFIDENTIAL–
CD files.
1.5

In the event a producing party may make available certain of its files

for inspection by another party, which files may contain non-confidential
Litigation Material as well as Litigation Material that may be subject to protection
under this Protective Order, with the intent that following such inspection the
inspecting party will designate certain of the inspected documents to be copied and
furnished to it, such files need not be marked with either confidentiality
designation in advance, but shall all be treated as HIGHLY CONFIDENTIAL
materials until such time as the producing party copies the documents to furnish to
the inspecting party, at which time the producing party shall mark Protected
Material with the appropriate confidentiality designation to the extent warranted
under this Order. Only those persons identified in paragraph 2.2 may be present at
any such inspection.
1.6

Subject to paragraphs 1.2 through 1.5, whenever a deposition involves

a disclosure of Protected Material, the following procedures shall apply:
(a)

Any party (or third party if involved) may designate any portion

or all of a deposition as CONFIDENTIAL, HIGHLY CONFIDENTIAL, or
HIGHLY CONFIDENTIAL–CD by notifying the other parties on the record
during the deposition. The Court Reporter shall be asked to make the

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appropriate confidentiality designation on each page of the transcript that
contains CONFIDENTIAL, HIGHLY CONFIDENTIAL, or HIGHLY
CONFIDENTIAL–CD information. At that time, all persons not qualified
to receive that category of information shall leave the room prior to
continuation of the deposition and until the conclusion of such designated
testimony; and
(b)

any party (or third party if involved) may also designate any

portion or all of a deposition as CONFIDENTIAL, HIGHLY
CONFIDENTIAL, or HIGHLY CONFIDENTIAL–CD by notifying the
other parties separately in writing within thirty days of receipt of the
transcript. In such event, the parties shall confer as to the most convenient
way to segregate the designated portions of the transcript. All information
disclosed at a deposition and all information contained in deposition
transcripts shall be treated as HIGHLY CONFIDENTIAL for a period of
thirty days after the receipt of the transcript to permit adequate time for
review of the transcript and notice to other counsel regarding any
designation as Protected Material by a designating party.
1.7

For the sake of clarity, this Order pertains only to Litigation Materials

in the form produced in this action, and is not intended to increase, decrease or
otherwise affect the rights and obligations of the parties with respect to any

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previously disclosed information or any other information received or developed
without use of Litigation Materials, which rights and obligations shall be governed
exclusively by any applicable law, agreements between the parties, and other
orders of this Court or another adjudicative body of competent jurisdiction.
2.

ACCESS TO AND USE OF PROTECTED MATERIAL
2.1

Protected Material, and all summaries, compilations, and derivations

thereof, whether oral or written, shall be maintained in confidence, shall be used
solely in the preparation, prosecution, or trial of this action and not for any other
purpose unless agreed in writing by the producing party, and shall be disclosed
only as provided in the following paragraphs.
2.2

Protected Material that has been designated as HIGHLY

CONFIDENTIAL in accordance with the terms of this Order may be disclosed by
the receiving party only to:
(a)

The outside attorneys of record and their employees who are

engaged in assisting in this action;
(b)

The following employees and former employees of a receiving

party (1) to whom disclosure is reasonably necessary for this litigation and
(2) who have signed the “Agreement to Be Bound by Protective Order” in
Exhibit A: Ken Kozak, Melissa Lueke, and Slava Elagin for Plaintiff; and
Kay Williams, Fabrizio Bonelli, and Frank Blocki for Defendant;

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(c)

Independent consultants or experts retained by the party or its

attorneys in connection with this action, including technical experts, damage
and industry experts, and jury or trial consultants, together with their
employees engaged in assisting in this action, who have signed the
“Agreement to Be Bound by Protective Order” in Exhibit A, but subject to
the provisions of paragraph 2.5 below;
(d)

The Court and its personnel;

(e)

Court reporters and their personnel engaged in proceedings

incident to preparation for trial or engaged in trial;
(f)

Professional vendors and their employees, including copy

services, trial graphics services, and translation services, engaged by counsel
that have signed the “Agreement to Be Bound by Protective Order” in Exhibit
A;
(g)

Any person who is indicated on the face of a document to have

been an author, addressee, or copy recipient of the document, or the original
source of the information; and
(h)

Any person specifically authorized by written consent or

written stipulation of the producing party, under conditions set forth by the
producing party in such consent or stipulation.
2.3

Protected Material that has been designated as HIGHLY

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CONFIDENTIAL–CD in accordance with the terms of this Order may be
disclosed by the receiving party only to:
(a)

The persons identified in paragraph 2.2;

(b)

Any employee (including any former employee) of the

receiving party or any of its affiliates that the receiving party reasonably
believes previously had access to such materials and to whom disclosure is
reasonably believed by the receiving party to be necessary for this litigation,
only to the extent reasonably believed by the receiving party to be necessary
for this litigation, and who has signed the “Agreement to Be Bound by
Protective Order” in Exhibit A; and
(c)

Any person specifically authorized by written consent or

written stipulation of the producing party, under conditions set forth by the
producing party in such consent or stipulation.
2.4

Protected Material that has been designated as CONFIDENTIAL in

accordance with the terms of this Order may be disclosed by the receiving party
only to:
(a)

The persons identified in paragraph 2.2;

(b)

Any employee (including any former employee) of the

receiving party or any of its affiliates to whom disclosure is reasonably
believed by the receiving party to be necessary for this litigation, only to the

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extent reasonably believed by the receiving party to be necessary for this
litigation, and who has signed the “Agreement to Be Bound by Protective
Order” in Exhibit A; and
(c)

Any person specifically authorized by written consent or

written stipulation of the producing party, under conditions set forth by the
producing party in such consent or stipulation.
2.5

Protected Material shall be disclosed by the receiving party to

consultants and experts only upon the following terms:
(a)

Prior to any disclosure, the consultant or expert shall be

identified in writing to the other parties’ counsel by name, address, and
corporate, business or other professional affiliation or employment, together
with a copy of the expert’s or consultant’s curriculum vitae and a list of the
expert’s or consultant’s engagements for the past three years;
(b)

Unless another party notifies the proposing party of any

objection and that objection is received within five business days after
notification (by fax, by email, or by overnight mail), the consultant or expert
shall thereafter be allowed to have access to Protected Material pursuant to
the terms and conditions of this Protective Order;
(c)

In the event of a timely objection, which shall be made in good

faith and on reasonable grounds, the proposing party shall refrain from

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disclosure of Protected Material to the consultant or expert until the
objection has been resolved between the parties or ruled upon by the Court;
(d)

The parties shall endeavor in good faith to resolve the dispute

without calling upon the intervention of the Court. The burden is on the
objecting party to seek the intervention of the Court by appropriate motion to
preclude the proposing party from disclosing Protected Material to the
consultant or expert. If no such motion is filed within ten business days of
receipt of the objection, the proposing party may disclose Protected Material
to the consultant or expert as if no objection had been raised; and
(e)

No party shall use its right to object to a proposed consultant or

expert to interfere with the ability of another party to prepare for trial
through the use of consultants and experts.
2.6

Prior to receiving any Protected Material, any persons described in

subparagraphs (b), (c), (e), (f), or (h) of paragraph 2.2 or subparagraphs (b) or (c)
of paragraphs 2.4 or 2.4 shall be furnished with a copy of this Protective Order and
shall execute a copy of the “Agreement to be Bound by Protective Order” attached
as Exhibit A. A copy of the signed Agreement shall be maintained by counsel for
the party providing such access. The signed Agreement of any former employee of
a receiving party must be provided to a producing party at least five days prior to
discussing with or disclosing or showing to the former employee any Protected

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Material of the producing party under this Protective Order; provided, that the
foregoing provisions in this sentence shall not apply to Kim Paulsen (a former
employee of DiaSorin Inc.).
2.7

Nothing in this Protective Order shall prevent any counsel of record

from utilizing Protected Material in the examination of any person who is
reasonably alleged to be the author or source of the Protected Material or who is
reasonably believed to have knowledge relating thereto. In addition:
(a)

Parties and present employees of the parties, or employees of

third parties, may be examined as a witness at depositions and trial and may
testify concerning all Protected Material produced or designated by that
party, or by the employee’s employer if a third party.
(b)

Former employees of the parties, or former employees of third

parties, may be examined and may testify concerning all Protected Material
produced or designated by the party, or third party, that formerly employed
such person and which pertains to the period or periods of his/her
employment and prior thereto.
(c)

Former experts of the parties may be examined and may testify

concerning all Protected Material produced or designated by the respective
party that formerly retained the expert that pertains to the subject matter of
the expert’s consultation.

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(d)

Notwithstanding other provisions of this Protective Order, if

Protected Material makes reference to the actual or alleged conduct or
statements of a person who is a potential witness at trial, counsel of record
may discuss such conduct or statements with such witness at her or his
deposition, or in preparation therefor, without revealing any portion of the
Protected Material other than that which specifically refers to such conduct
or statements, and such discussion shall not constitute disclosure in violation
of this Protective Order.
2.8

Nothing in this Protective Order shall preclude any party from

introducing Protected Material into evidence at any evidentiary hearing or at trial.
However, if anyone intends to introduce or refer to Protected Material at any
hearing or trial, the party wishing to make the disclosure shall first notify the
producing party and provide that party with an opportunity to object and/or to ask
the Court to take appropriate precautionary procedures (e.g., clearing the
Courtroom, sealing the record, etc.).
2.9

Nothing in this Protective Order shall bar or otherwise restrict any

attorney from rendering advice to his/her clients with respect to this litigation and
referring to or relying generally upon his/her examination of Protected Material,
provided that in rendering such advice and in otherwise communicating with his/her
clients, the attorney shall not disclose the content of such information, unless the

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recipient of such advice is an individual identified in this Protective Order as being
permitted to have access to such Protected Material.
2.10 All persons in possession of Protected Material shall exercise
reasonable and appropriate care with regard to the storage, custody, and use of
such information in order to ensure that the provisions of this Protective Order are
observed and the confidential nature of the information is maintained.
2.11 During the course of this action, a receiving party may change, in
good faith, one or more of the designated individuals in subparagraph 2.2(b)
provided, however, that prior to disclosure of any HIGHLY CONFIDENTIAL
material of a producing party to each such designated individual (“New Designated
Individual”):
(a)

counsel for the receiving party shall provide notice to counsel

for the producing party of such New Designated Individual, identifying the
New Designated Individual’s employer, job title, department if applicable,
and job responsibilities and providing the New Designated Individual’s
executed the “Agreement to Be Bound by Protective Order” in Exhibit A;
(b)

the producing party shall have five (5) business days from

receipt of such notice to object in writing to disclosure of HIGHLY
CONFIDENTIAL material to the New Designated Individual, setting forth
the reason(s) for the objection, during which time the receiving party shall

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not disclose HIGHLY CONFIDENTIAL material to the New Designated
Individual;
(c)

barring such objection in writing referenced in subparagraph

2.11(b), the producing party waives the objection to the New Designated
Individual;
(d)

the parties shall attempt to resolve any objection informally, but

if the objection cannot be resolved, the party that objects to the disclosure of
HIGHLY CONFIDENTIAL material to the New Designated Individual
must, if it desires to prevent disclosure, move for an order of the Court
prohibiting such disclosure;
(e)

such motion referenced in subparagraph 2.11(d) must be filed

within five (5) business days from the time the parties reach an impasse and
are unable to resolve the objection informally, or else the producing party
waives the objection to the New Designated Individual; and
(f)

during the pendency of any such objection or dispute or motion,

the receiving party shall not disclose HIGHLY CONFIDENTIAL material to
the disputed New Designated Individual.
3.

CHALLENGES TO CONFIDENTIALITY DESIGNATIONS
3.1

Any party believing that particular information has been improperly

designated, i.e., that it is not in fact CONFIDENTIAL or HIGHLY

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CONFIDENTIAL or that it may not be so designated or protected in accordance
with the terms of this Order, may challenge such designation at any time by raising
the issue, in writing to the designating party, and specifically identifying, by
document identification (Bates) number, by deposition page and line, or by other
appropriate specific identifier, the information whose confidentiality status is
challenged and the basis for the challenge. Within ten business days of receipt of
such writing, the designating party shall either remove or reduce the designation,
or respond that it has reviewed the matter and continues to maintain the
designation in good faith.
3.2

The parties shall endeavor in good faith to resolve any such dispute

without calling upon the intervention of the Court. If the designating party
maintains its designation and the parties are unable to reach agreement, the
challenging party may bring the issue to the Court. The party asserting
confidentiality shall have the burden of establishing the appropriateness of the
designation, except that a party claiming that information designated by the other
as CONFIDENTIAL or HIGHLY CONFIDENTIAL is in the public domain shall
have the burden of proving such public knowledge.
3.3

Challenged information shall be treated as designated until the

resolution of the dispute by the parties or ruling by the Court.

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4.

FILING OF PROTECTED MATERIAL
4.1

This Protective Order does not authorize filing protected materials

under seal. According to the authority of Procter & Gamble Co. v. Bankers Trust
Co., 78 F.3d 219 (6th Cir. 1996), no document may be filed with the Court under
seal without prior permission as to each such filing, upon motion and for good
cause shown, including the legal basis for filing under seal. Unless the Court
orders otherwise, all sealed documents shall be filed according to S. D. Ohio Civ.
R. 5.2.1. A party seeking to file Protected Material with the Court shall take
reasonable steps to obtain permission from the Court to file the Protected Material
under seal and, if such permission is not granted, shall allow the party that
produced the Protected Material a reasonable opportunity (a) to ask the Court for
reconsideration or (b) to take other reasonable steps to avoid the public disclosure
of the Protected Material.
5.

TERMINATION OF LITIGATION
5.1

The obligations of this Protective Order shall survive the termination

of the action and continue to bind the parties subject, however, to the rights and
obligations of the parties as ultimately determined upon termination of this action
by judgment, settlement or otherwise from which no appeal can be brought ("Final
Determination").
5.2

Within sixty days after Final Determination, each party shall destroy

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all Protected Materials of any other party that have been provided after the
commencement of this action and shall provide the producing party with a written
certification of such destruction. Each party’s outside litigation counsel shall have
the right to retain one electronic copy and one paper copy of the following
materials containing or constituting the Protected Materials of other parties in
addition to any work product reflecting such Protected Materials: the pleadings,
motions, memoranda, documents, and papers filed with the Court; correspondence
between the parties; and deposition transcripts and exhibits.
6.

THIRD PARTY DISCOVERY
6.1

In the event that any third party shall be called upon, by subpoena or

otherwise, to provide or produce documents or information considered
CONFIDENTIAL or HIGHLY CONFIDENTIAL by such third party, such third
party may elect to have its information treated in accordance with the terms of this
Protective Order by so notifying counsel for all parties in writing. Upon service of
such notice, such third party may designate Protected Material as
CONFIDENTIAL or HIGHLY CONFIDENTIAL in accordance with this
Protective Order, and such third party’s designated information shall be protected
in the same manner as that of the parties to this action. Further, any party may
designate Protected Material provided by any third party as CONFIDENTIAL or
HIGHLY CONFIDENTIAL in accordance with the terms of this Protective Order

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regardless of whether the third party elected to so designate its documents or
information.
7.

INADVERTENT DISCLOSURE
7.1

If a party inadvertently discloses any Protected Material without

designating it properly pursuant to this Protective Order, the disclosing party shall
promptly upon discovery of such inadvertent disclosure inform the receiving party
in writing, forwarding a replacement copy of the inadvertently disclosed material
properly marked with the appropriate confidentiality designation. The receiving
party shall thereafter treat the information as if it had been properly marked from
the outset and shall make a reasonable effort to retrieve and destroy the unmarked
or improperly marked version of the inadvertently disclosed material. Disclosure
by the receiving party to unauthorized persons before being notified of the
inadvertent disclosure shall not constitute a violation of this Protective Order.
Nothing in this Protective Order shall preclude the receiving party from
challenging the confidentiality designation of the late-marked material pursuant to
the provisions of paragraph 3.
7.2

Recognizing that this Court has ordered on consent of the parties that

discovery in this action will proceed on an expedited basis and that discovery
likely will include a high volume of electronically stored information (“ESI”), and
having considered the court’s opinion in Irth Solutions, LLC v. Windstream

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Communications LLC, 2017 U.S. Dist. LEXIS 121241 (S.D. Ohio 2017), the
parties agree that the inadvertent or mistaken production or disclosure of
documents or other information subject to a claim of the attorney-client privilege,
the work product doctrine, or other privilege or immunity, regardless of the reason
for or care taken in connection with the inadvertent or mistaken production, shall
not be deemed a waiver of a claim of privilege or immunity, either as to the
specific information disclosed or as to any other related information. Further, the
parties expressly agree that this agreement shall supplant the requirements of Fed.
R. Evid. 502(b)(2) and Fed. R. Evid. 502(b)(3). If a producing party inadvertently
produces, or otherwise discloses to a receiving party, information that is subject to
such a claim of privilege or immunity, the producing party shall promptly upon
discovery of such disclosure so advise the receiving party in writing and request
that the inadvertently disclosed information be returned. The receiving party shall
immediately cease all review of such inadvertently produced material, immediately
segregate such inadvertently produced material, and return all copies of the
inadvertently produced material within five business days of receipt of the request.
Any notes, summaries, or analyses referring or relating to any inadvertently
produced privileged material shall be destroyed. Nothing in this Protective Order
shall preclude the receiving party returning the inadvertently produced material
from seeking an order compelling the production of information previously

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produced inadvertently on the grounds that the material was improperly designated
as privileged.
7.3

The production or disclosure of privileged or work-product protected

Information, whether inadvertent or otherwise, is not a waiver of the privilege or
protection from discovery in this action or in any other federal or state proceeding.
This provision shall be interpreted to provide the maximum protection allowed by
Fed. R. Evid. 502(d) and the parties’ Joint Discovery Plan (ECF No. 37).
Notwithstanding, nothing contained herein is intended to or shall serve to limit a
party’s right to conduct a review of any document, ESI, or information (including
metadata) for relevance, responsiveness, and/or segregation of privileged and/or
protected information before production.
7.4

If Protected Material that is subsequently returned or destroyed

pursuant to paragraph 7.2 was or is used in, or inserted into, any other document,
then to the extent possible, such material will be expunged promptly and will not
be used. To the extent, however, that, prior to being notified of the inadvertent
production, the receiving party in good faith used such material in documents filed
with the Court or in questioning a witness at a deposition, the receiving party shall
reasonably cooperate with the producing party to expunge such material from the
Court’s record or the deposition record. The producing party may designate such
Protected Material included in any transcript or documents used at a deposition

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“CONFIDENTIAL”, “HIGHLY CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL–CD” to the extent permitted under this Order, and may request
that any documents containing Protected Material previously filed with the Court
be withdrawn and, if not claimed to be privileged, re-filed under seal pursuant to
paragraph 4 of this Order. Notwithstanding this paragraph, the receiving party
maintains its rights under this Order to challenge the confidentiality designation
and/or privileged status of any such material.
7.5

No challenge in this action to the designation of Protected Material as

CONFIDENTIAL, HIGHLY CONFIDENTIAL, or HIGHLY CONFIDENTIAL–
CD or to a claim of privilege or immunity from disclosure shall assert as a ground
for the challenge that the materials were initially produced with an incorrect or
with no confidentiality designation or initially produced inadvertently. No
challenge in this action to a claim of privilege or immunity from disclosure of any
material initially produced inadvertently shall refer to the information contained in
the material produced inadvertently, except the information that appears on any
applicable privilege log.
8.

MISCELLANEOUS PROVISIONS
8.1

If Protected Material in the possession of any receiving party is

subpoenaed or otherwise subject to compulsory process by any court, by any
administrative or legislative body, or by any other person purporting to have

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authority to subpoena such information outside this action, or is the subject of any
discovery request under Rules 30-36 of the Federal Rules of Civil Procedure or any
comparable rule of court or of any adjudicative body (such subpoena, compulsory
process, or discovery request collectively referred to as a “Third Party Request”),
the party to whom the Third Party Request is directed will not produce such
information without first (a) giving prompt written notice (including a copy of the
Third Party Request) to the attorneys of record for the producing party, no more
than three business days after receiving the Third Party Request, and (b) giving the
producing party five business days after giving it such notice to object to the Third
Party Request. The party receiving the Third Party Request must also promptly
inform in writing the party who caused the Third Party Request to issue, e.g., in
another litigation, that some or all the material covered by the Third Party Request
is subject to this Protective Order. The party receiving the Third Party Request
must deliver a copy of this Protective Order promptly to the party in the other
action that caused the Third Party Request to issue.
8.2

The producing party shall bear the burden and expense of seeking

protection in court of its own Protected Material, and nothing in this Protective
Order should be construed as authorizing or encouraging a party receiving a Third
Party Request in this action to disobey a lawful directive from another court.
Disclosure of information in response to a properly issued Third Party Request

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shall not constitute a violation of this Protective Order.
8.3

This Protective Order may be modified only by further Order of the

Court, whether sua sponte or by agreement of the parties or their counsel and
approval by the Court, and is without prejudice to the rights of any party (or third
party) to move for relief from any of its provisions, or to seek or agree to different
or additional protection for any particular material or information.
8.4

Treatment by counsel or the parties of information designated

“CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or “HIGHLY
CONFIDENTIAL–CD” shall not be construed as an admission by any party that
the designated information contains trade secrets or other proprietary or
confidential information. Conversely, failure to so designate shall not constitute a
waiver of any party’s claims, either within or outside this action, that any such
documents or information do contain trade secrets or other proprietary or
confidential information.
8.5

No party shall be obligated to challenge the propriety of any

designation, and failure to challenge a claim of confidentiality at the time of receipt
shall not constitute a waiver of the right to challenge a confidentiality designation at
any later time.
8.6

In the event that any additional party joins or is joined in this

litigation, such party shall not have access to Protected Material until such party

25

has executed and filed with the Court its “Agreement to Be Bound by Protective
Order” in Exhibit A.
8.7

Nothing in this Order shall prohibit the transmission or

communication of information designated “CONFIDENTIAL”, “HIGHLY
CONFIDENTIAL” , or “HIGHLY CONFIDENTIAL–CD” between or among
those afforded access to it pursuant to this Order, including (a) via hand-delivery,
(b) via face-to-face conference, (c) in sealed envelopes or containers via the mail or
an established freight, delivery, or messenger service, or (d) by e-mail, telephone,
facsimile, FTP, drop box, secure server, or other electronic storage or transmission
means.
8.8

Each individual who receives any Protected Material in accordance

with any provision of this Order hereby agrees to subject himself or herself to the
jurisdiction of this Court for the purpose of any proceedings relating to the
performance under, compliance with, or violation of this Order.

IT IS SO ORDERED:

s/Karen L. Litkovitz
_
MAGISTRATE JUDGE KAREN L. LITKOVITZ

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MERIDIAN BIOSCIENCE INC.,
Plaintiff,
v.

Case No. 1:17-cv-341
Magistrate Judge Karen L. Litkovitz
AGREEMENT TO BE BOUND BY
PROTECTIVE ORDER

DIASORIN INC.,
Defendant.

I, ______________________, hereby acknowledge that I received a copy of the
Protective Order in this action. I read and understood the Protective Order and agree to be
bound by its provisions. I agree not to copy or use any Protected Material (as defined by
the Protective Order) that is provided to me for any purpose other than in connection with
my participation or retention in connection with this action, and I agree not to reveal any
such information to any person not authorized to receive it by the Protective Order.
I further acknowledge and understand that a violation of the Protective Order may
subject me to penalties of the Court, and I hereby submit to the jurisdiction of the United
States District Court for the Southern District of Ohio in connection with any proceedings
concerning enforcement of the Protective Order.
Dated: _____________, 20__

____________________________________