Kurnik et al v. Amgen Inc et al

Filing 171

CONFIDENTIALITY ORDER granting 170 Joint MOTION for Confidentiality Order. Signed by Honorable Joseph F. Anderson, Jr. on 11/03/2014.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
UNITED STATES OF AMERICA, et al.,
Plaintiffs
ex rel. FRANK KURNIK,

CIVIL ACTION NO. 3:11-cv-01464-JFA

Plaintiff-Relator,
v.
PHARMERICA CORPORATION, et al.,
Defendants.
Whereas, the parties to this Consent Confidentiality Order (“parties”), have stipulated
that certain discovery material is and should be treated as confidential, and have agreed to the
terms of this order; accordingly, it is this
1.

day of October, 2014, ORDERED:

Scope. All documents produced in the course of discovery, all responses to

discovery requests and all deposition testimony and deposition exhibits and any other materials
which may be subject to discovery (hereinafter collectively “documents”) shall be subject to this
Order concerning confidential information as set forth below.
2.

Form and Timing of Designation.

Confidential documents shall be so

designated by placing or affixing the word “CONFIDENTIAL” on the document in a manner
which will not interfere with the legibility of the document and which will permit complete
removal of the Confidential designation. Documents shall be designated CONFIDENTIAL prior
to, or contemporaneously with, the production or disclosure of the documents. Inadvertent or
unintentional production of documents without prior designation as confidential shall not be

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deemed a waiver, in whole or in part, of the right to designate documents as confidential as
otherwise allowed by this Order.
The inadvertent production of any Discovery Material in this Action will be without
prejudice to any claim that the material is privileged or protected from disclosure under the
attorney-client privilege, the attorney work product doctrine, or any other applicable privilege or
protection (“Privileged Material”). If a party believes that it inadvertently produced Privileged
Material (the “Disclosing Party”), the Disclosing Party may notify any party that received the
Privileged Material of the claim or privilege and the basis for the material being privileged.
After receipt of this written notice from the Disclosing Party, the party that received the material
(the “Receiving Party”) must take commercially reasonable efforts to sequester or destroy the
Privileged Material and any copies, including without limitation all related metadata, notes, or
other documents created from the Privileged Material. Each Receiving Party shall make no
further use of the Privileged Material other than to challenge the assertions of privilege as set
forth in Paragraph 8 of this Order.
3.

Documents Which May be Designated Confidential and/or for "Highly

Confidential."
a.

Any party may designate documents as confidential but only after review of the

documents by an attorney1 who has, in good faith, determined that the documents contain
information protected from disclosure by statute, sensitive personal information, trade
secrets, or confidential research, development, or commercial information.

The

certification shall be made concurrently with the disclosure of the documents, using the
1

The attorney who reviews the documents and certifies them to be CONFIDENTIAL or HIGHLY
CONFIDENTIAL must be admitted to the Bar of at least one state but need not be admitted to practice in
the District of South Carolina and need not apply for pro hac vice admission. By signing the certification,
counsel submits to the jurisdiction of this court in regard to the certification.
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form attached hereto at Attachment A which shall be executed subject to the standards of
Rule 11 of the Federal Rules of Civil Procedure. Information or documents which are
available in the public sector may not be designated as confidential.
b.

In addition to designating documents as "CONFIDENTIAL" under this Order,

any party to this Litigation and any third-party shall have the right to limit disclosure of
documents, portions of documents, or information to outside counsel of record to this
Litigation by placing or affixing the words “HIGHLY CONFIDENTIAL” on the
document and otherwise complying with the process for the designation of
CONFIDENTIAL documents set forth in Paragraph 2 above. Any party, or third-party,
may designate documents as Highly Confidential, but only after review of the documents
by an attorney who has, in good faith, determined that the documents contain highly
sensitive business or personal information, the disclosure of which is highly likely to
cause significant harm to an individual or to the business or competitive position of the
designating party. Material produced and marked as Highly Confidential may be
disclosed only to outside counsel of record for the receiving party and to such other
limited categories of persons set forth in Paragraph 5 of this Order unless otherwise
ordered by the Court. All documents designated as Highly Confidential also are
considered designated as Confidential and subject to the same protections and
procedures, unless otherwise specifically enumerated in this Order.
4.

Depositions.

Portions of depositions shall be deemed confidential only if

designated as such when the deposition is taken or within seven business days after receipt of the
transcript. Such designation shall be specific as to the portions to be protected.
5.

Protection of Confidential Material.

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a.

General Protections.

Documents designated CONFIDENTIAL or HIGHLY

CONFIDENTIAL under this Order shall not be used or disclosed by the parties or
counsel for the parties or any other persons identified below (¶ 5.b.) for any purposes
whatsoever other than preparing for and conducting the litigation in which the documents
were disclosed (including any appeal of that litigation).
b.

Limited Third Party Disclosures. The parties and counsel for the parties shall

not disclose or permit the disclosure of any documents designated CONFIDENTIAL or
HIGHLY CONFIDENTIAL under the terms of this Order to any other person or entity
except as set forth below, and then only after the person to whom disclosure is to be made
has executed an acknowledgment (in the form set forth at Attachment B hereto), that he
or she has read and understands the terms of this Order and is bound by it.
(I)

Subject to these requirements, the following categories of persons may be

allowed to review documents which have been designated CONFIDENTIAL
pursuant to this Order:
(a)

counsel and employees of counsel for the parties who have

responsibility for the preparation and trial of the lawsuit;
(b)

parties and employees of a party to this Order but only to

the extent counsel shall certify that the specifically named individual party or
employee’s assistance is necessary to the conduct of the litigation in which the
information is disclosed2;

2

At or prior to the time such party or employee completes his or her acknowledgment of review of this
Order and agreement to be bound by it (Attachment B hereto), counsel shall complete a certification in
the form shown at Attachment C hereto. Counsel shall retain the certification together with the form
signed by the party or employee.
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(c)

court reporters engaged for depositions and those persons, if any,

specifically engaged for the limited purpose of making photocopies of documents;
(d)

consultants, investigators, or experts (hereinafter referred to

collectively as “experts”) employed by the parties or counsel for the parties to
assist in the preparation and trial of the lawsuit; and
(e)

other persons only upon consent of the producing party or upon

order of the court and on such conditions as are agreed to or ordered.
(II)

Subject to these requirements, the parties agree that outside counsel of

record, and the parties' in-house counsel who have responsibility for the
preparation and trial of the lawsuit, and the Court shall have access to documents
which have been designated HIGHLY CONFIDENTIAL pursuant to this Order
but, otherwise, the parties shall confer in good faith to determine the categories of
other persons who may be allowed to review such documents. In no event shall
such outside or in-house counsel share documents designated HIGHLY
CONFIDENTIAL with any other individual or entity prior to conferring with
counsel for the designating party. Any report created by an expert or consultant
relying on or incorporating HIGHLY CONFIDENTIAL Discovery Material shall
be designated as “Highly Confidential” by the party responsible for its creation
and the expert witnesses or consultants may not use HIGHLY CONFIDENTIAL
material for their competitive advantage or for any purpose other than relating to
this Action.
c.

Control of Documents.

Counsel for the parties shall take reasonable efforts to

prevent unauthorized disclosure of documents designated as Confidential or Highly

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Confidential pursuant to the terms of this order. Counsel shall maintain a record of those
persons, including employees of counsel, who have reviewed or been given access to the
documents along with the originals of the forms signed by those persons acknowledging
their obligations under this Order.
d.

Copies. All copies, duplicates, extracts, summaries or descriptions (hereinafter

referred to collectively as “copies”), of documents designated as Confidential or Highly
Confidential under this Order or any portion of such a document, shall be immediately
affixed with the designation “CONFIDENTIAL” or "HIGHLY CONFIDENTIAL" (as
applicable) if the word does not already appear on the copy. All such copies shall be
afforded the full protection of this Order.
6.

Filing of Confidential Materials. In the event a party seeks to file any material

that is subject to protection under this Order with the court, that party shall take appropriate
action to insure that the documents receive proper protection from public disclosure including:
(1) filing a redacted document with the consent of the party who designated the document as
confidential; (2) where appropriate (e.g. in relation to discovery and evidentiary motions),
submitting the documents solely for in camera review; or (3) where the preceding measures are
not adequate, seeking permission to file the document under seal pursuant to the procedural steps
set forth in Local Civil Rule 5.03, DSC, or such other rule or procedure as may apply in the
relevant jurisdiction. Absent extraordinary circumstances making prior consultation impractical
or inappropriate, the party seeking to submit the document to the court shall first consult with
counsel for the party who designated the document as confidential to determine if some measure
less restrictive than filing the document under seal may serve to provide adequate protection.
This duty exists irrespective of the duty to consult on the underlying motion. Nothing in this

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Order shall be construed as a prior directive to the Clerk of Court to allow any document be filed
under seal. The parties understand that documents may be filed under seal only with the
permission of the court after proper motion pursuant to Local Civil Rule 5.03.
7.

Greater Protection of Specific Documents. No party may withhold information

from discovery on the ground that it requires protection greater than that afforded by this Order
unless the party moves for an Order providing such special protection.
8.

Challenges to Designation as Confidential. Any CONFIDENTIAL or HIGHLY

CONFIDENTIAL designation is subject to challenge.

The following procedures shall apply to

any such challenge.
a.

The burden of proving the necessity of a Confidential or Highly Confidential

designation remains with the party asserting confidentiality or Highly Confidential status.
b.

A party who contends that documents designated CONFIDENTIAL or as

HIGHLY

CONFIDENTIAL

are

not

entitled

to

confidential

or

HIGHLY

CONFIDENTIAL treatment shall give written notice to the party who affixed the
designation of the specific basis for the challenge. The party who so designated the
documents shall have fifteen (15) days from service of the written notice to determine if
the dispute can be resolved without judicial intervention and, if not, to move for an Order
confirming the Confidential or Highly Confidential designation.
c.

Notwithstanding any challenge to the designation of documents as confidential or

Highly Confidential, all material previously designated CONFIDENTIAL or as HIGHLY
CONFIDENTIAL shall continue to be treated as subject to the full protections of this
Order until one of the following occurs:

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(I)

the party who claims that the documents are confidential or Highly

Confidential withdraws such designation in writing;
(II)

the party who claims that the documents are confidential or Highly

Confidential fails to move timely for an Order designating the documents as
confidential or Highly Confidential as set forth in Paragraph 8.b. above; or
(III)

the court rules that the documents should no longer be designated as

confidential or Highly Confidential information.
d.

Challenges to the Confidential or Highly Confidential status of documents may be

made at any time and are not waived by the failure to raise the challenge at the time of
initial disclosure or designation.
9.

Treatment on Conclusion of Litigation.

a.

Order Remains in Effect. All provisions of this Order restricting the use of

documents designated CONFIDENTIAL or HIGHLY CONFIDENTIAL shall continue
to be binding after the conclusion of the litigation unless otherwise agreed or ordered.
b.

Return of CONFIDENTIAL Documents. Within thirty (30) days after the

conclusion of the litigation, including conclusion of any appeal, all documents subject to
this Order, including copies as defined above (¶5.d.) shall be returned to the producing
party unless: (1) the document has been entered as evidence or filed (unless introduced or
filed under seal); (2) the parties stipulate to destruction in lieu of return; or (3) as to
documents containing the notations, summations, or other mental impressions of the
receiving party, that party elects destruction. Notwithstanding the above requirements to
return or destroy documents, counsel may retain attorney work product including an
index which refers or relates to information designated CONFIDENTIAL or HIGHLY

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CONFIDENTIAL so long as that work product does not duplicate verbatim substantial
portions of the text of confidential documents.

This work product continues to be

Confidential or Highly Confidential under the terms of this Order. An attorney may use
his or her work product in a subsequent litigation provided that its use does not disclose
the confidential information therein.
10.

Order Subject to Modification. This Order shall be subject to modification on

motion of any party or any other person who may show an adequate interest in the matter to
intervene for purposes of addressing the scope and terms of this Order. The Order shall not,
however, be modified until the parties shall have been given notice and an opportunity to be
heard on the proposed modification.
11.

No Judicial Determination. This Order is entered based on the representations

and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall
be construed or presented as a judicial determination that any specific document or item of
information designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL by counsel is
subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until
such time as a document-specific ruling shall have been made.
12.

Persons Bound. This Order shall take effect when entered and shall be binding

upon: (1) counsel who signed below and their respective law firms; and (2) their respective
clients.
IT IS SO ORDERED.
October 28, 2014
November 3, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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RELATOR FRANK KURNIK,

PHARMERICA CORP. and
KINDRED HEALTHCARE, INC.

By his attorneys,

By their attorneys,

s/__Richard A. Harpootlian .
Richard A. Harpootlian
Bar No. 1730
1410 Laurel Street
Post Office Box 1090
Columbia, SC 29202
Telephone: [phone]
[e-mail]

s/Deborah Barbier
Deborah B. Barbier
DEBORAH B. BARBIER, LLC
1531 Laurel Street
Columbia, SC 29201
Telephone: [phone]
[e-mail]

Reuben A. Guttman (admitted pro hac vice)
Traci Buschner (admitted pro hac vice)
GRANT & EISENHOFER P.A.
1747 Pennsylvania Ave., NW, Suite 875
Washington, DC 20006
Telephone: [phone]
[e-mail]
[e-mail]

Michael R. Manthei (admitted pro hac vice)
Jeremy M. Sternberg (admitted pro hac vice)
David M. Glynn (admitted pro hac vice)
HOLLAND & KNIGHT LLP
10 St. James Avenue
Boston, MA 02116
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]

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ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

UNITED STATES OF AMERICA, et al.,
Plaintiffs
ex rel. FRANK KURNIK,

Civil Action No. 3:11-cv-01464-JFA

Plaintiff-Relator,
Certification by Counsel of Designation
of Information as Confidential

v.
PHARMERICA CORPORATION, et al.,
Defendants.

Documents produced herewith whose bates numbers are listed on the attached index have
been marked as CONFIDENTIAL or HIGHLY CONFIDENTIAL (as so indicated) subject to the
Confidentiality Order entered in this action which Order is dated [confidentiality order date].
By signing below, I am certifying that I, or an attorney under my supervision or control,
personally reviewed the marked documents and believe, based on that review, that they are
properly subject to protection under the terms of Paragraph 3 of the Confidentiality Order.
Check and complete one of the two options below.
❑

I am a member of the Bar of the United States District Court for the District of
South Carolina. My District Court Bar number is [District Court Bar #].

❑

I am not a member of the Bar of the United States District Court for the District of
South Carolina but am admitted to the bar of one or more states. The state in
which I conduct the majority of my practice is [state in which I practice most]
where my Bar number is [that state's Bar #]. I understand that by completing this
certification I am submitting to the jurisdiction of the United States District Court
for the District of South Carolina as to any matter relating to this certification.

Date: [date attachment A signed]

[Signature of Counsel [s/name]]
Signature of Counsel
11

[Printed Name of Counsel [A]]
Printed Name of Counsel

12

ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

UNITED STATES OF AMERICA, et al.,
Plaintiffs

Civil Action No. 3:11-cv-01464-JFA

ex rel. FRANK KURNIK,

Acknowledgment of Understanding
and
Agreement to be Bound

Plaintiff-Relator,
v.
PHARMERICA CORPORATION, et al.,
Defendants.

The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated October
, 2014, in the above captioned action, understands the terms thereof, and agrees
to be bound by such terms. The undersigned submits to the jurisdiction of the United States
District Court for the District of South Carolina in matters relating to the Confidentiality Order
and understands that the terms of said Order obligate him/her to use discovery materials
designated CONFIDENTIAL and/or HIGHLY CONFIDENTIAL solely for the purposes of the
above-captioned action, and not to disclose any such confidential information to any other
person, firm or concern.
The undersigned acknowledges that violation of the Stipulated Confidentiality Order may
result in penalties for contempt of court.
Name:

[undersigned name [att B]]

Job Title:

[Job Title [att B]]

Employer:

[Employer [att B]]

Business Address:

[Business Address [att B]]

Date: [date attachment B signed]

[Signature [attachment B]]
Signature
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ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

UNITED STATES OF AMERICA, et al.,
Plaintiffs
Civil Action No. 3:11-cv-01464-JFA
ex rel. FRANK KURNIK,
Certification of Counsel
of Need for Assistance of Party/Employee

Plaintiff-Relator,
v.
PHARMERICA CORPORATION, et al.,
Defendants.

Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.b(I)(b), I certify that the assistance of [name of assistant [att C]] is
reasonably necessary to the conduct of this litigation and that this assistance requires the
disclosure to this individual of information which has been designated as CONFIDENTIAL.
I have explained the terms of the Confidentiality Order to the individual named above
and will obtain his or her signature on an “Acknowledgment of Understanding and Agreement to
be Bound” prior to releasing any confidential documents to the named individual and I will
release only such confidential documents as are reasonably necessary to the conduct of the
litigation.
The individual named above is:
❑

A named party;

❑

An employee of named party [employee of named party]. This employee’s job
title is [employee's job title] and work address is [employee's work address].

Date: [date attachment C signed]

[Signature [attachment C]]
Signature
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