Swann v. Akorn, Inc
Filing
39
CONFIDENTIALITY ORDER Signed by Magistrate Judge Paige J. Gossett on 3/17/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
C.A. NO. 3:16-cv-02724-CMC-PJG
MICHAEL J. SWANN,
Plaintiff,
v.
AKORN, INC. & INTERPACE
DIAGNOSTICS GROUP, INC.,
Defendants.
__________________________________
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CONFIDENTIALITY ORDER
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 17th day of March, 2017,
ORDERED:
1.
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 CONFIDENTIAL prior to, or
contemporaneously with, the production or disclosure of the documents. In advertent or
unintentional production of documents without prior designation as confidential shall not be
deemed a waiver, in whole or in part, of the right to designate documents as confidential
as otherwise allowed by this Order.
3.
Documents Which May be Designated Confidential.
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 form attached hereto
as 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.
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.
a.
General Protections.
Documents designated 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).
The parties shall not disclose documents
designated as confidential to putative class members not named as plaintiffs in putative
class litigation unless and until one or more classes have been certified.
b.
Limited Third Party Disclosures. The parties and counsel for the
parties shall not disclose or permit the disclosure of any document designated
1
The attorney who reviews the documents and certifies them to be 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.
CONFIDENTIAL under the terms of this Order to any other person or entity except as set
forth in subparagraphs (1)-(5) below, and then only after the person to whom disclosure is
to be made has executed an acknowledgement (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. Subject to these requirements, the following categories of persons may be allowed to
review documents which have been designated CONFIDENTIAL pursuant to this Order:
(1)
counsel and employees of counsel for the parties who have
responsibility for the preparation and trial of the lawsuit;
(2)
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;
(3)
court reporters engaged for depositions and those persons, if
any, specifically engaged for the limited purpose of making photocopies of
documents;
(4)
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
(5)
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.
c.
Control of Documents.
Counsel
for
the
parties
shall
take
reasonable efforts to prevent unauthorized disclosure of documents designated as
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
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.
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 under this Order or any portion of such a document, shall be immediately
affixed with the designation “CONFIDENTIAL” 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 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
designation is subject to challenge. The following procedures shall apply to any such
challenge.
a.
The burden of proving the necessity of a Confidential designation
remains with the party asserting confidentiality.
b.
A party who contends that documents designated CONFIDENTIAL
are not entitled to 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 designation.
c.
Notwithstanding any challenge to the designation of documents as
confidential, all material previously designated CONFIDENTIAL shall continue to be
treated as subject to the full protections of this Order until one of the following occurs:
(1) the party who claims that the documents are confidential withdraws
such designation in writing;
(2) the party who claims that the documents are confidential fails to move
timely for an order designating the documents as confidential as set forth
in paragraph 9.b. above; or
(3) the court rules that the documents should no longer be designated as
confidential information.
d.
Challenges to the confidentiality 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 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 treated
as confidential under this Order, including copies as defined above (¶6.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 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 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 documents.
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 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.
____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
March 17, 2107
Columbia, South Carolina
ATTACHMENT A
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
C.A. NO. 3:16-cv-02724-CMC-PJG
MICHAEL J. SWANN,
Plaintiff,
v.
AKORN, INC. & INTERPACE
DIAGNOSTICS GROUP, INC.,
Defendants.
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CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION AS
CONFIDENTIAL
Documents produced herewith, which are listed on the attached index have been
marked as CONFIDENTIAL subject to the Confidentiality Order entered in this action
which Order is dated March _, 2017.
By signing below, I am certifying that I have 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
.
❑
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
_______________ where my Bar number is _____________. 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:
Signature of Counsel
Printed Name of Counsel
ATTACHMENT B
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
C.A. No. 3:16-cv-02724-CMC-PJG
MICHAEL J. SWANN,
Plaintiff,
v.
AKORN, INC. & INTERPACE
DIAGNOSTICS GROUP, INC.,
Defendants.
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CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION AS
CONFIDENTIAL
The undersigned hereby acknowledges that he or she has read the
Confidentiality Order dated March _, 2017, 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 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:
Job Title:
Employer:
Business Address:
Date:
Signature
ATTACHMENT C
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
C.A. NO. 3:16-cv-02724-CMC-PJG
MICHAEL J. SWANN,
Plaintiff,
v.
AKORN, INC. & INTERPACE
DIAGNOSTICS GROUP, INC.,
Defendants
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CERTIFICATION OF COUNSEL OF
NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.b.2., I certify that the assistance of
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
job title is
. This employee’s
and work address is
.
Date:
Signature
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