Gentle et al v. Portland Orthopaedics Limited et al

Filing 30

PROTECTIVE ORDER. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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TRAVIS GENTLE and LISA
GENTLE,

NO: 2:16-CV-121-RMP

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Plaintiffs,
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PROTECTIVE ORDER

v.
PORTLAND ORTHOPAEDICS
LIMITED; PORTLAND
ORTHOPAEDICS, INC.;
SYMMETRY MEDICAL, INC., doing
business as Symmetry Medical Othy;
SYMMETRY MEDICAL OTHY;
SYMMETRY OTHY; OTHY; MIPRO
US , INC.; MAXX HEALTH, INC.;
MAXX ORTHOPEDICS, INC.; PLUS
ORTHOPEDICS; SMITH &
NEPHEW, INC.; and JOHN DOE
CORPORATIONS 1-50,

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Defendants.
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STIPULATED PROTECTIVE ORDER

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I.

SCOPE OF THIS ORDER

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A.

Disclosure and discovery activity in this proceeding may involve

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production of confidential, proprietary, and private information for which special
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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation would be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the within agreed upon Protective Order.

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B.

This Protective Order shall govern all hard copy and electronic

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materials, the information contained therein, and all other information produced or

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disclosed during this proceeding, including all copies, excerpts, summaries, or

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compilations thereof, whether revealed in a document, deposition, other testimony,

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discovery response or otherwise, by any party to this proceeding (the “Producing

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Party”) to any other party or parties (the “Receiving Party”) whether or not such

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documents or information are informally produced or produced in response to

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formal discovery requests.

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C.

Third parties who so elect may avail themselves of, and agree to be

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bound by, the terms and conditions of this Protective Order and thereby become a

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Producing Party for purposes of the Protective Order.

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D.

Nothing herein shall be construed to affect in any manner the

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admissibility at trial or any other court proceeding of any document, testimony, or

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other evidence.

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E.

This Protective Order is binding upon all parties to this lawsuit

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including their respective affiliates, attorneys, principals, agents, experts,

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consultants, representatives, directors, officers, employees and others as set forth in

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this Protective Order.
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II.

PROTECTIVE ORDER
A.

At any time prior to the production of any documents or information

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by the producing party, it may designate such information or documents as

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confidential or highly confidential and subject to this Protective Order. The

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producing party shall further designate material as confidential or highly

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confidential and subject to this Protective Order by placing the following or

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substantially similar marking on each copy of each document copied for, by, or on

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behalf of the Plaintiff(s) or Co-Defendants in this action in a manner which will

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not interfere with its legibility: “CONFIDENTIAL – SUBJECT TO AGREED

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PROTECTIVE ORDER,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY”. Documents or information so designated shall be referred to

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herein as “Confidential Discovery Material.”

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B.

Any Confidential Discovery Material that is filed with the Court, and

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any pleading, motion, or other paper filed with the Court that reveals the content of

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any such Confidential Discovery Material, shall be filed under seal and shall bear

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the legend:

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THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION

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COVERED BY A PROTECTIVE ORDER OF THE COURT AND IS

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SUBMITTED UNDER SEAL PURSUANT TO THAT PROTECTIVE ORDER.

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THE CONFIDENTIAL CONTENTS OF THIS DOCUMENT MAY NOT BE

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DISCLOSED WITHOUT EXPRESS ORDER OF THE COURT.
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C.

Use of Confidential Discovery Material subject to this Protective

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Order at trial will be determined by subsequent agreement of the parties or order of

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this Court.

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D.

Disclosure of “CONFIDENTIAL” Information or Items: Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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CONFIDENTIAL only to:

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(1)

counsel of record for the parties in this action;

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(2)

paralegals or secretarial employees under the direct supervision

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or employ of counsel of record in this action;

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(3)

retained experts of the parties;

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(4)

the Court and its personnel;

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(5)

outside copy and document processing entity or person in

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connection with this litigation;
(6)

former employees, subcontractors or independent contractors of

the defendant(s);

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(7)

treating physicians;

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(8)

parties or current employees of the parties;

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(9)

the author of the document or the original source of the

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information or people who were recipients, such as “cc’s” and “bcc’s;” and

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(10) a mediator, arbitrator or other private dispute resolution
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facilitator.
The parties agree that the documents designated as confidential may be

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revealed to additional persons, including parties and/or in-house counsel, by

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agreement, which shall not be unreasonably withheld. Under no circumstances

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shall any of the categories of persons under this paragraph disclose such

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confidential documents to the press or media.

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E.

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” Information or Items: Unless otherwise ordered by the court or permitted

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in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” only to:

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(1)

counsel of record for the parties in this action;

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(2)

paralegals or secretarial employees under the direct supervision

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or employ of counsel of record in this action;

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(3)

in-house counsel, officers, employees for the parties in this

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(4)

retained experts of the parties;

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(5)

the Court and its personnel;

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(6)

outside copy and document processing entity or person in

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action;

connection with this litigation;
(7)

the author of the document or the original source of the

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information or people who were recipients, such as “cc’s” and “bcc’s”; and

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(8)

a mediator, arbitrator or other private dispute resolution

facilitator.
F.

Each person who reviews or inspects confidential documents or

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information subject to this Protective Order (excluding counsel of record and

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employees of counsel) shall be brought within the personal jurisdiction of this

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court, including its contempt power, by signing a copy of the attached Exhibit 1,

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signifying agreement to the provisions of this Protective Order and consenting to

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the jurisdiction of this Court over his or her person for any proceedings involving

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alleged improper disclosure of said protected documents or information.
G.

No person entitled to access to protected documents or information

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under this Protective Order shall be provided with the protected documents or

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information unless such individual has first read the Protective Order of this Court

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and completed and signed the attached Exhibit 1 provided. No person entitled to

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access confidential documents or information shall disclose or discuss the

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existence or contents of any such materials with any other individual, except those

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individuals who are also permitted to view, inspect or examine the materials

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protected herein. The information protected by this Protective Order shall be used

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for the sole purpose of the preparation for the above referenced lawsuit, and shall

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not be used for any other purpose or for any other legal action except as provided

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by this Protective Order.
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H.

Each party’s counsel shall maintain a list of the names of all persons

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who inspect or review Confidential Discovery Material obtained from another

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party prior to trial of this matter or who receive any copies of such confidential

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documents. Each party will produce a copy of the executed Exhibit 1 for each of

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its testifying experts along with that expert’s report. With the exception of the

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Expert provision discussed in this section, the parties expressly agree, and it is

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hereby ordered, that except in the event of a violation of this Order, the parties will

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make no attempt to seek copies of the Endorsements to Exhibit 1 or to determine

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the identities of the persons signing them. If the court finds that any disclosure is

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necessary to investigate a violation of this Protective Order, such disclosure will be

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made under a separate court order. Persons who come into contact with

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confidential information for clerical or administrative purposes, and who do not

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retain copies or extracts thereof, are not required to execute Endorsements but must

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comply with the terms of this Protective Order. The terms of this Protective Order

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shall not apply to any publicly available information or documents.

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I.

RETURN OF DOCUMENTS AND INFORMATION. Copies of

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documents and information produced by a defendant may remain in the possession

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of the undersigned Plaintiffs’ counsel and staff as defined in paragraph II.D.2., but

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shall be governed by the terms and conditions of this Protective Order. The

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documents and information produced by a defendant may be used by the

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undersigned counsel of record in this lawsuit. The documents and information
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produced by a defendant may not be used for any other purpose nor disclosed to

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any other person except as provided by this Protective Order without the express

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written consent of the producing defendant upon written application or request to

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the producing defendant. Within thirty (30) days after the conclusion of this

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lawsuit, the undersigned Plaintiffs’ attorney shall either (1) return all the

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documents and information to the producing defendant at the location selected by

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the producing defendant and at the undersigned Plaintiffs’ attorney’s expense, or

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(2) produce an affidavit executed by the undersigned Plaintiffs’ attorney indicating

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that all of the documents from the producing defendant have been destroyed or will

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be destroyed within a reasonable time. This Protective Order remains in full force

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and effect and governs the use of the documents and information.

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J.

APPLICATION TO THE COURT. Nothing herein shall be construed

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to preclude or limit any party from opposing any discovery on any ground which

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would otherwise be available. Nothing in this Protective Order shall be deemed to

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preclude any party from seeking or obtaining, on the appropriate showing,

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additional protection with respect to the confidentiality of documents or

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information. Nothing in this Protective Order shall preclude any party from

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seeking or obtaining, on the appropriate showing, an order lifting the protection

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granted in this Protective Order with respect to the confidentiality of documents or

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information.

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K.

ADMISSION INTO EVIDENCE. The terms of this Protective Order

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shall not be construed as any limitation upon the right of any party to offer into

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evidence any documents, response, or information designated as confidential.

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L.

VIOLATION OF PROTECTIVE ORDER. A violation by any person

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of any provision of this Protective Order may be punishable as determined by the

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Court. Further, the parties may pursue any and all civil remedies available for

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breach of the terms of this Protective Order.

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M.

JURISDICTION OF THE COURT. This Court retains jurisdiction

over the parties, counsel for the parties, and all persons, firms, corporations, or

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organizations, whomsoever, to whom this Protective Order applies, for purposes of

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enforcement of this Protective Order following the conclusion of this action.

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N.

CHALLENGE TO CONFIDENTIALITY DESIGNATION.
1.

If a party elects to challenge any designation of confidentiality

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of any documents or information pursuant to this Protective Order, that party shall

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provide the designating party thirty (30) days advance written notice and afford the

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producing party opportunity to voluntarily remove such designation. The

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producing party shall, within thirty (30) days of the receipt of such notice, either

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voluntarily remove the designation or file a written motion with the Court for an

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order preventing or limiting disclosure. Each such motion shall be accompanied

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by one copy of each document, response, or portion or

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following the provision set forth above in paragraph II.B. of this Protective Order,
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transcript challenged,

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and the confidentiality of such information, shall remain protected until the Court

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orders otherwise. In the event the producing party files a motion seeking

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protection of challenged documents or information, the party opposing the motion

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shall respond to the motion and the producing party shall have the opportunity to

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reply.

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The interested parties shall attempt to resolve any such challenge by

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agreement prior to the time for filing of a motion as herein provided. If the

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challenge is not resolved by agreement, or by voluntary removal, and if no motion

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is filed within thirty (30) days of the receipt of written notice of the challenge,

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then the confidential designation shall be removed and shall not thereafter apply to

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such documents or information.

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2.

All documents, testimony, or other materials designated by the

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producing party as confidential shall retain their confidential status during the

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pendency of any proceeding challenging confidentiality initiated by a party until

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such time as the parties’ contentions initiated by a party regarding confidentiality

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of documents and materials so designated are fully and finally adjudicated,

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including such appeals as may be sought.

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3.

Neither this Protective Order nor the designation of any item as

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confidential shall be construed as an admission that such material or any testimony

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in respect to such material in a deposition or otherwise would be admissible in

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evidence in this litigation or in any other proceeding. In addition, this Protective
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Order does not, of itself, require the production of any information or document.
O.

THIRD PARTY REQUEST FOR CONFIDENTIAL DISCOVERY

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MATERIAL. If confidential documents or information in the possession of a

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receiving party is subpoenaed or requested by any court, administrative or

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legislative body, or any other person or organization purporting to have authority

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to subpoena or request such data or information, the party to whom the subpoena

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or request is directed shall not, to the extent permitted by applicable law, provide

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or otherwise disclose such documents or information without waiting ten (10)

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business days after first notifying counsel for the producing party in writing of: (1)

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the information and documentation which is requested for production in the

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subpoena or request; (2) the date on which compliance with the subpoena or

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request is sought; (3) the location at which compliance with the subpoena or

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request is sought; (4) the identity of the party serving the subpoena or making the

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request; and (5) the case name, jurisdiction, and index, docket, complaint, charge,

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civil action, or other identification number or designation identifying the litigation,

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administrative proceeding, or other proceeding in which the subpoena or request

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has been issued.

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P.

INADVERTENT OR UNINTENTIONAL DISCLOSURE. Any

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inadvertent or unintentional disclosure of confidential material will not be

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construed as a waiver, in whole or in part, of (1) the producing party’s claims of

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confidentiality either as to the specific information inadvertently or unintentionally
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disclosed or as to any other confidential material disclosed prior to or after that

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date, or (2) the producing party’s right to designate said material as confidential

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material pursuant to this Protective Order. This Protective Order does not in any

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way deprive a party of its right to contest the producing party’s claims to

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protection for confidential, proprietary, and trade secret information. Nor does this

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Protective Order in any way deprive the producing party of its right to claim that

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such information should be protected from disclosure. Production of documents or

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information pursuant to this Protective Order shall not be construed as a waiver of

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any sort by the parties.

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Q.

Nothing herein shall be construed or applied to affect the rights of any

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party to discovery under the Federal Rules of Civil Procedure, or to assert any

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objection, or to prohibit any party from seeking such further provisions or relief as

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it deems necessary or desirable regarding this Protective Order, including, but not

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limited to an order that discovery not be had.

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IT IS SO ORDERED.

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The District Court Clerk is directed to enter this Order and provide copies to

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counsel.
DATED this 30th day of November 2016.

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s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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EXHIBIT 1

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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TRAVIS and LISA GENTLE, husband and
wife,

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Plaintiffs,
v.
PORTLAND ORTHOPAEDICS LIMITED;
PORTLAND ORTHOPAEDICS, INC.;
SYMMETRY MEDICAL, INC., d/b/a
SYMMETRY MEDICAL OTHY;
SYMMETRY OTHY; OTHY; ORCHID
ORTHOPEDIC SOLUTIONS; MIPRO US,
INC.; MAXX HEALTH, INC.; MAXX
ORTHOPEDICS, INC.; PLUS
ORTHOPEDICS; SMITH & NEPHEW,
INC.; and JOHN DOE CORPORATIONS
1-50,
Defendants.

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NO. 2:16-cv-00121-RMP
PROTECTIVE ORDER
AGREEMENT

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WITNESS ENDORSEMENT OF AGREED PROTECTIVE ORDER

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I hereby attest to my understanding that information or documents
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designated confidential are provided to me subject to the Agree Protective Order
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dated November 30, 2016 (“Protective Order”), in the above-captioned litigation;
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that I have been given a copy of and have read the Protective Order, and that I
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agree to be bound by its terms. I also understand that my execution of this
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Endorsement indicating my agreement to be bound by the Protective Order is a
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prerequisite to my review of any information or documents designated as
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confidential pursuant to the Protective Order.
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I further agree that I shall not disclose to others, except in accord with the
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Protective Order, any Confidential Discovery Material, as defined therein, or any
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information contained in such Confidential Discovery Material, in any form
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whatsoever, and that such Confidential Discovery Material and the information
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contained therein may be used only for the purposes authorized by the Protective
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Order.
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I further agree and attest to my understanding that my obligation to honor
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the confidentiality of such discovery material and information will continue even
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after this litigation concludes.
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I further agree and attest to my understanding that, if I fail to abide by the
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terms of the Protective Order, I may be subject to sanctions, including contempt of
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PROTECTIVE ORDER ~ 15

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court, for such failure. I agree to be subject to the jurisdiction of this Court for the

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purposes of any proceedings relating to enforcement of the Protective Order.

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I further agree to be bound by and to comply with the terms of the Protective

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Order as soon as I sign this Agreement, whether or not the Protective Order has yet

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been entered as an Order of the Court.

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BY: ______________________________

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Printed Name:

________________________

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