Grellner v. Raabe et al

Filing 91

ORDER GRANTING STIPULATED PROTECTIVE ORDER AND PROTECTIVE UNDERTAKING. Signed by Judge Salvador Mendoza, Jr. (SK, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Sep 29, 2016

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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DANIEL GRELLNER, individually
and doing business as Venacore Inc.,
Plaintiff,

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v.

SEAN F. MCAVOY, CLERK

NO. 2:15-CV-0189-SMJ

ORDER GRANTING STIPULATED
PROTECTIVE ORDER AND
PROTECTIVE UNDERTAKING

RODNEY D. RAABE, individually and
on behalf of Sapheon Inc. and Sapheon
LLC, SAPHEON INC., a California
corporation, SAPHEON LLC, a
California limited liability company,
COVIDIEN HOLDING INC., a
Delaware corporation, COVIDIEN LP, a
Delaware limited partnership also known
as Tyco Healthcare Group LP and
COVIDIEN SALES LLC, a Delaware
limited liability company also known as
Covidien LLC,

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Defendants.

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A telephonic scheduling conference was held on September 22, 2016, the
Court adopted the parties’ Stipulated Protective Order and Protective Undertaking,
ECF No. 88-1.
IT IS HEREBY ORDERED:

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1. The parties Stipulated Protective Order and Protective Undertaking, ECF

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No. 88-1, is GRANTED.

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IT IS HEREBY STIPULATED AND AGREED THAT:

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PROTECTIVE ORDER

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following

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order shall govern the production or provision of confidential information or things

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by the parties in this case and any third parties (provided such third parties

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recognize and accept the procedures herein) for the purpose of responding to

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discovery requests or inquiries.

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DEFINITIONS

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A.

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Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
B.

“CONFIDENTIAL” Information or Items: information

(regardless

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of how it is generated, stored, or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), including, but not limited

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to, all information or material produced for or disclosed to a Receiving Party that a

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Designating Party, including any Party and any Non-Party producing information

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or material voluntarily or pursuant to a subpoena or court order, reasonably and in

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good faith considers to constitute confidential research, development, financial,

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technical or commercial information or other information the Receiving Party

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would not have access to but for this lawsuit. Such material shall include non-

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public information to which the Producing Party’s employees have only limited

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access, and/or information, the dissemination or disclosure of which would present

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a real or potential economic threat to the producing party.

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C.

Designating Party: A Party or Non-Party that designates information

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or items that it produces in disclosures or in response to discovery as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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D.

Disclosure or Discovery Material:

all

items

or

information,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that are

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produced or generated in disclosures or responses to discovery in this matter,

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including but not limited to documents, data and information, answers to

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interrogatories, answers to deposition questions (if the deposition is so designated),

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responses to requests for admission, affidavits, expert reports, and any information

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copied or extracted therefrom, as well as all copies, excerpts, summaries, or

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compilations thereof, plus testimony, conversations, or presentations by parties or

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counsel to or in court or in other settings that might reveal confidential

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information.

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E.

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items: extremely sensitive “CONFIDENTIAL” Information or

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Items representing material comprising or containing competitively sensitive

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information that could be used by the Receiving Party to obtain a business (not

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legal) advantage over the Producing Party, including, but not limited to, trade

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secrets, highly sensitive, non-public technical information, documents disclosing

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the past, present, or intended design, development, configuration, materials,

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manufacture, testing or trial, and the results of such testing or trials, of the products

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of any Party, documents or information related to damages (e.g., sales numbers or

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profit margins), or documents or

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published patent applications.

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F.

information related to pending and not yet

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
G.

Party(ies): the named Parties in this litigation; all predecessors and

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successors thereof; all present divisions, subsidiaries or affiliates of any of the

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foregoing entities; and all directors, officers, employees, agents, attorneys, or other

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representatives of any of the foregoing entities.

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H.

Producing Party: a Party or Non-Party that produces Disclosure or

Discovery Material in this action.
I.

Receiving Party:

a Party that receives Disclosure or Discovery

Material from a Producing Party.

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RECITALS

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1.

Any party to this action, and any non-party from whom discovery is

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sought in connection with this action, may designate as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” any Disclosure or

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Discovery

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information.

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2.

Material

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that

contains

“CONFIDENTIAL”

“CONFIDENTIAL”

or

“HIGHLY

or

“HIGHLY

CONFIDENTIAL

–

ATTORNEYS’ EYES ONLY” designation shall be made unless the Designating

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Party reasonably believes in good faith that the designated material constitutes

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” information.

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3.

Unless and until the Court rules otherwise, material marked as

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be maintained

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in confidence by the party to whom such material is produced and shall not be

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disclosed to any person except:

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(a)

Attorneys of record in this litigation, employees of such attorneys,

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counsel to whom it is necessary that the information be disclosed for purposes of

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this litigation, and vendors or service providers retained by the Parties or attorneys

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of record, including but not limited to translators and litigation support services;

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(b)

Any person hired by a party or its attorneys of record in this litigation,

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including testifying experts, investigators, consulting experts, and any other

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independent consultant, each of whom is not a competitor or employed by a

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competitor of the producing party or an agent of a competitor of the producing

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party, and who is not employed by or associated with either party, and who agrees

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in writing to be bound by the terms of this Protective Order. Each of these

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individuals must provide the following information: (i) the individual’s name and

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business title; (ii) business address; (iii) business or profession; (iv) the

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individual’s CV; (v) any previous or current relationship (personal or professional)

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with any of the parties; (vi) a list of other cases in which the individual has testified

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(at trial or deposition) within the last four years; (vii) a list of all companies with

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which the individual has been employed within the last four years and a brief

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description of the subject matter of the employment; and (viii) a complete and

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signed Protective Order Undertaking, attached hereto as Exhibit A. The Protective

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Order Undertaking must be served on the Producing Party before any access is

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allowed to the Producing Party’s confidential information. Attorneys for the

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Producing Party shall have ten (10) business days from the receipt of the Protective

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Order Undertaking to object in writing to disclosure of confidential information to

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the identified expert or consultant. After the expiration of the 10-day period, if no

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objection has been asserted, then the confidential information may be disclosed

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pursuant to the terms of this Protective Order. Any objection by a Producing Party

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must set forth in detail the grounds on which it is based. Should the parties

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disagree with the basis for the Producing Party’s objection(s), the Receiving Party

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must first attempt in good faith to resolve the objection(s) informally with the

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Producing Party. If the informal efforts do not resolve the dispute within five (5)

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business days, the Receiving Party may file a motion requesting that the Producing

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Party’s objection(s) be quashed. The Producing Party shall have the burden of

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proof by a preponderance of evidence on the issue of the sufficiency of the

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objection(s). Pending a ruling by the Court upon any such objection(s), the

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confidential information shall not be disclosed by the Receiving Party to the person

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objected to by the Producing Party;

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(c)

Employees of a person qualified under paragraph 4(b) above, each of

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whom is not a competitor or employed by a competitor of the producing party or

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an agent of a competitor of the producing party, and who is not employed by or

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associated with either party. Such employees must sign a Protective Order

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Undertaking, and such Protective Order Undertaking must be retained and

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preserved during this litigation by the attorney of record for the Receiving Party,

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but such Protective Order Undertaking need not be disclosed to the Producing

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Party, unless the Court for good cause orders otherwise;

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(d)

Jury consultant(s) and/or mock jurors, each of whom is not a

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competitor or employed by a competitor of the producing party or an agent of a

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competitor of the producing party, and who is not employed by or associated with

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either party. Such jury consultant(s) and/or mock jurors must sign a Protective

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Order Undertaking, and such Protective Order Undertaking must be retained and

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preserved during this litigation by the attorney of record for the Receiving Party,

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but such Protective Order Undertaking need not be disclosed to the Producing

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Party, unless the Court for good cause orders otherwise;

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(e)

Defendants Sapheon Inc., Sapheon LLC, Covidien Holdings Inc.,

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Covidien LP, and Covidien Sales LLC in-house attorneys Chad Hanson and

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Thomas Johnston;

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(f)

The authors and original recipients of the documents;

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(g)

Persons testifying in depositions or in court proceedings provided that

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(1) such documents or information were authored by, addressed to, or received by

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such persons or other persons employed by the same entity as such persons, or (2)

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such documents or information were produced by or obtained from such persons or

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their employer;

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(h)

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Court reporters employed in this litigation, including their necessary

stenographic, videographic and clerical personnel; and

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(i)

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required by law.

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4.

The Court, any juror or any other entity authorized by the Court or

Unless and until the Court rules otherwise, material marked as

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“CONFIDENTIAL” shall be maintained in confidence by the party to whom such

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material is produced and shall not be disclosed to any person except:

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(a)

The persons identified in paragraph above;

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(b)

Plaintiff Daniel Grellner;

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(c)

Defendant Dr. Rodney D. Raabe; and

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(d)

Employees of Defendants Sapheon Inc., Sapheon LLC, Covidien

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Holdings Inc., Covidien LP, and Covidien Sales LLC, and employees of the

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successors, subsidiaries, parents and affiliates of Defendants Sapheon Inc.,

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Sapheon LLC, Covidien Holdings Inc., Covidien LP, and Covidien Sales LLC, to

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the extent necessary for purposes of this litigation.

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5.

In the event that a Producing Party elects to produce original

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documents or other material for inspection, no markings need be made on the

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documents or material by the Producing Party in advance of the inspection. During

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the inspection, such documents or material shall be considered confidential

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information to the extent and at the level designated by the Producing Party prior

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to the inspection. After selection by the Receiving Party of specific documents or

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material for copying, the Producing Party shall make the appropriate copies, and

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the appropriate confidentiality designations shall be placed on the documents or

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materials before they are provided to the Receiving Party.

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6.

Information disclosed at a deposition (or hearing), as well as through

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resulting transcripts or exhibits, of a Party, the present or former officers, directors,

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employees, agents, or independent experts retained by a Party for the purpose of

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this litigation, or a Non-Party in possession of confidential information of a Party,

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may be designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” by indicating such designation on the record,

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subject to the Protective Order, or by following the procedure set forth in

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paragraph 7 below. If a deposition or hearing transcript is designated as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” by indicating such designation on the record, the designating party has up

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to 30 days to identify the specific portions of the testimony as to which protection

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is sought and to specify the level of protection being asserted. Only those portions

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of the testimony that are appropriately designated for protection within the 30 days

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shall be covered by the provisions of this Protective Order.

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7.

If timely corrected, confidential information produced without the

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appropriate designation of confidentiality may be properly designated subsequent

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to the production or testimony when the Producing Party failed to make such

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designation at the time of production or during the testimony through inadvertence

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or error. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure the material is treated in accordance with the

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provisions of this Order.

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8.

Absent any overriding rules of this Court or orders of this Court, no

Disclosure or Discovery Material designated as “CONFIDENTIAL” OR

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be filed in the

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public record of this action. In the event that any Disclosure or Discovery Material

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that has been designated “CONFIDENTIAL” OR “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” is included with, or in any way disclosed in, any

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pleading, motion, deposition transcript or other paper filed with the Court, such

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Disclosure or Discovery Material shall be filed under seal with the Court.

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9.

Inadvertent production of privileged information shall be handled as

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follows, but this is without prejudice to the right of any party to apply to the Court

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for further protection or disclosure relating to discovery:

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(a)

When a Producing Party gives written notice to a Receiving Party that

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certain inadvertently produced material (specifically described by Bates number(s)

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and/or other sufficiently detailed description) is subject to a claim of privilege or

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other protection, the obligations of the Receiving Party are those set forth in

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Federal Rule of Civil Procedure 26(b)(5)(B);

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(b)

If the Receiving Party, without notice from the Producing Party,

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determines that information subject to the attorney-client privilege or work-product

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immunity has been inadvertently produced by a Producing Party, the Receiving

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Party shall promptly contact the Producing Party and advise it of the inadvertent

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disclosure. Federal Rule of Civil Procedure 26(b)(5)(B) shall govern the obligation

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of the Receiving Party;

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(c)

If the Receiving Party believes it has a good-faith basis for challenging

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the privilege claim asserted by the Producing Party, the Receiving Party shall

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provide the Producing Party with a written explanation of the good-faith basis for

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the belief that the inadvertently produced Disclosure or Discovery Material are not

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privileged within five (5) business days of the Producing Party’s request for return.

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The Producing Party shall respond in writing to the Receiving Party’s timely

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challenge to the privilege or immunity claim within five (5) business days from

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receipt of the challenge;

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(d)

In the event the parties cannot agree as to the privilege or immunity

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status of the inadvertently produced Disclosure or Discovery Material, the

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Receiving Party shall have ten (10) business days from receipt of the Producing

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Party’s written response to the privilege challenge to file a motion (in accordance

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with any applicable standing orders or local rules) seeking an order compelling

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production of the inadvertently produced Disclosure or Discovery Material. The

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Receiving Party shall comply with Federal Rule of Civil Procedure 26(b)(5)(B) in

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challenging the asserted privilege(s) concerning any inadvertently produced

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Disclosure or Discovery Material. In the event that a motion is made, the

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Producing Party shall have the burden of proving the inadvertently produced

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Disclosure or Discovery Material are privileged or immune from discovery;

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(e)

Inadvertent disclosure of information subject to the attorney-client

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privilege, work-product immunity, or any other applicable privilege or immunity

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shall not, in and of itself, constitute a waiver of such privilege(s). Pursuant to Rule

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502(d) of the Federal Rules of Evidence, the Court hereby orders that the attorney-

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client privilege or work product protection is not waived by disclosure connected

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with the above-referenced matter and any such disclosure is also not a waiver in

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any other federal or state proceeding.

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10.

A party may challenge the correctness or propriety of a confidentiality

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designation of a Designating Party by requesting the Court to order a different

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designation or de-designation. The Designating Party shall bear the burden of

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establishing a need for the designation by a preponderance of the evidence. No

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party, however, is obligated to challenge the correctness or propriety of any

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designation of confidentiality under this Order, and any failure to challenge a

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designation shall not prejudice or preclude a subsequent challenge to that or any

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other designation. A challenge to a Designating Party’s confidentiality designation

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shall follow the following provisions:

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(a)

A party that elects to initiate a challenge to a Designating Party’s

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confidentiality designation must do so in good faith and must begin the process by

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conferring directly with counsel for the Designating Party. In conferring, the

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Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and the Designating Party shall have three (3) business

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days to review the designated Disclosure or Discovery Material, to reconsider the

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circumstances, and if no change in designation is offered, to explain in writing to

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the Challenging Party the basis for the chosen designation. A Challenging Party

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may proceed to the next stage of the challenge process only if it has engaged in this

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meet and confer process first; and

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(b)

A party that elects to press a challenge to a confidentiality designation

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after considering the written justification offered by the Designating Party may file

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and serve a motion that identifies the challenged Disclosure or Discovery Material

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and sets forth in detail the basis for the challenge. Each such motion must be

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accompanied by a competent declaration that affirms that the movant has complied

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with the meet and confer requirements imposed in the preceding paragraph. The

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burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Until the Court rules on the challenge, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the

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Producing Party’s designation.

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11.

All discovery material exchanged under this Protective Order between

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the parties in this litigation shall be used solely for this litigation, unless otherwise

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agreed to beforehand in writing by the Producing Party or if the Court so orders.

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Each Party reserves its right to seek or oppose an order from the Court permitting

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the use in other litigation of confidential discovery material.

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12.

If confidential information in the possession, custody or control of a

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Receiving Party is sought by subpoena, request for production, interrogatory, or

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any other form of discovery request or compulsory process of any court,

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administrative body or legislative body, or any other person or tribunal purporting

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to have opportunity to seek such information by compulsory process or discovery

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request, including private parties, the Receiving Party shall: (i) within one (1)

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calendar week after receipt thereof, give written notice by hand or facsimile or

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electronic mail of such process or discovery request together with a copy thereof,

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to counsel for the Producing Party; (ii) cooperate to the extent necessary to permit

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the Producing Party to seek to quash such process or discovery request; and (iii)

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not produce or disclose such confidential information until the Producing Party

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consents in writing to the production, or the Receiving Party is ordered by a court

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of competent jurisdiction to produce or disclose the confidential information.

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13.

Within sixty (60) days after the conclusion of this litigation, including

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any appeals, all confidential information designated and produced hereunder, and

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all copies thereof, shall be returned to the Producing Party or be destroyed.

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Notwithstanding the foregoing, counsel of record may retain all of their files from

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this litigation, including, but not limited to, pleadings, correspondence, discovery

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requests and responses, expert disclosures, and transcripts, whether or not such

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files refer to or include any confidential information designated in this litigation.

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14.

By stipulating to the entry of this Protective Order no party waives any

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right it otherwise would have to object to disclosing or producing any information

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or item on any ground not addressed in this Protective Order. Similarly, no party

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waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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15.

Confidential information the Producing Party considers privileged, or

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subject to the work product immunity doctrine or some other applicable immunity

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or privilege under the Federal Rules, that is dated after the filing of this litigation,

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is not required to be listed on any privilege log provided by the producing party to

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the requesting party. Counsel for a Producing Party may redact material deemed

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exempt from discovery because of the attorney-client privilege or work-product

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immunity afforded by Rule 26(b), Fed. R. Civ. P. Any document from which

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material is redacted must identify in the redacted area that a redaction was made.

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The reason for any such redaction must be stated in the document itself or on a

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privilege log provided to the Receiving Party within thirty (30) days of producing

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the redacted document(s) to a Receiving Party. In the event of any dispute as to the

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propriety of the redaction, the party objecting to the redaction may submit the issue

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to the Court for review and determination.

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16.

information or material that:

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(a)

(b)

is acquired by the non-Designating Party from a third party having the

right to disclose such information or material; or

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was, is, or becomes public knowledge other than by violation of this

Protective Order;

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The restrictions set forth in this Protective Order shall not apply to

(c)

was lawfully possessed by the non-Designating Party prior to the entry

by the Court of the Protective Order.

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17.

Nothing contained in this Protective Order shall preclude a Party

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producing confidential information from using its own confidential information in

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any manner it sees fit without prior consent from any other Party or from the

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Court.

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18.

Each individual who receives any confidential information so

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designated under this Protective Order agrees to submit himself/herself to the

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jurisdiction of this Court for the purpose of any proceedings relating to compliance

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with the Protective Order.

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19. This Protective Order shall remain in full force and effect after the

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termination of this litigation, until a Designating Party agrees in writing or until

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canceled or otherwise modified by this Court.

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20.

Any Party hereto may at any time make a motion requesting that the

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Court modify this Protective Order to provide additional or different protection

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where it is deemed appropriate.

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IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order
and provide copies to all counsel.

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DATED this ____ day of September 2016.
29th

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______________________________
SALVADOR MENDOZA, JR.
United States District Court Judge

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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DANIEL GRELLNER, individually
and doing business as Venacore Inc.,
Plaintiff,

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NO. 2:15-CV-0189-SMJ

PROTECTIVE ORDER
UNDERTAKING

v.
RODNEY D. RAABE, individually and
on behalf of Sapheon Inc. and Sapheon
LLC, SAPHEON INC., a California
corporation, SAPHEON LLC, a
California limited liability company,
COVIDIEN HOLDING INC., a
Delaware corporation, COVIDIEN LP, a
Delaware limited partnership also known
as Tyco Healthcare Group LP and
COVIDIEN SALES LLC, a Delaware
limited liability company also known as
Covidien LLC,
Defendants.

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PROTECTIVE ORDER UNDERTAKING

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I, ________________________, having been retained by

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_____________________ in connection with the above-captioned lawsuit hereby

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acknowledge that I am about to receive information subject to the Protective Order

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agreed to by the parties and so ordered by the Court in this case.

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I certify my understanding that the information subject to the Protective

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Order is being provided to me pursuant to the terms and restrictions of the

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Protective Order, and that I have been given a copy of and have read and

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understand my obligations under the Protective Order. I hereby agree to be bound

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by the terms of the Protective Order. I clearly understand that information subject

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to the Protective Order and my copies and notes relating thereto may only be

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disclosed to or discussed with persons allowed under the Protective Order to

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receive such information.

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I will return upon request all materials containing information subject to the
Protective Order and all copies thereof.

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I hereby submit to the jurisdiction of this Court for the purposes of

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enforcement of the Protective Order and waive any and all objections to

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jurisdiction and venue.

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I make all statements above under penalty of perjury.

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__________________________________

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Printed name:_______________________

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Company name/address/phone:

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__________________________________

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__________________________________

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__________________________________

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