McKesson Medical-Surgical Inc v. Vessel Medical Inc
Filing
27
CONSENT CONFIDENTIALITY ORDER granting 25 Motion for Confidentiality Order Signed by Honorable Donald C Coggins, Jr on 11/5/2018.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
McKesson Medical-Surgical, Inc.,
Plaintiff,
vs.
Vessel Medical, Inc.,
Defendant.
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Civil Action No. 6:17-cv-03287-DCC
CONSENT 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 5th day of November 2018,
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 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 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 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.
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.
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.
b. Limited Disclosures. The parties and counsel for the parties shall not disclose or
permit the disclosure of any documents designated 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
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. 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.
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.
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 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 such designations do 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 8.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 designated as
CONFIDENTIAL under 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 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.
s/Donald C. Coggins, Jr.
_____________________________________
UNITED STATES DISTRICT JUDGE
November 5, 2018
Spartanburg, South Carolina
ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
McKesson Medical-Surgical, Inc.,
Plaintiff,
vs.
Vessel Medical, Inc.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 6:17-cv-03287-DCC
CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION
AS CONFIDENTIAL
Documents produced herewith [whose bates numbers are listed below (or)
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
_________________, 2018.
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 Paragraphs 3 or 5 of the Confidentiality Order, as applicable.
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
ACKNOWLEDGMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
McKesson Medical-Surgical, Inc.,
Plaintiff,
vs.
Vessel Medical, Inc.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 6:17-cv-03287-DCC
ACKNOWLEDGEMENT OF
UNDERSTANDING AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated__________________, 20____, 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, as required by the Confidentiality Order.
The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.
________________________________
Name
________________________________
Job
________________________________
Title
________________________________
Employer
Business Address:
________________________________
________________________________
________________________________
___________________
Date
_____________________________
Signature
ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
McKesson Medical-Surgical, Inc.,
Plaintiff,
vs.
Vessel Medical, Inc.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 6:17-cv-03287-DCC
CERTIFICATION OF COUNSEL OF
NEED FOR ASSITANCE 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 _______________________. This employee’s job
title is ________________________________________ and work address is
__________________________________________.
_________________________
Date
___________________________
Signature
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