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Mitchell v. Depuy Synthes Sales, Inc.

United States District Court, D. Kansas

October 23, 2019

DEPUY SYNTHES SALES, INC., et. al., Defendants.


          James P. O'Hara, U.S. Magistrate Judge

         The Parties to this Proceeding recognize that due to the claims and defenses, they will be required to produce or Disclose certain confidential or private Information and Documents and that Disclosure of such Information and Documents without reasonable restriction on its use may cause harm, damage, loss or disadvantage to the Parties or nonparties.

         Specifically, the Parties assert that protection of the identified categories of Confidential Material is necessary because this product-liability action involves alleged injuries suffered by the Plaintiffs due to Plaintiff Julie Mitchell being implanted with Defendants' Attune total knee replacement system (“the Attune Knee”). Prosecution and defense of this Action may therefore implicate and require the production and use of the Plaintiffs' personal and private medical and financial records and Information as well as trade secret or proprietary Information and Documents regarding Defendants' design, engineering, testing, specification and manufacture of the Attune Knee and other medical devices and products. Plaintiffs and Defendants hereby stipulate and agree as follows:

         1. Definitions.

         a. “Action” or “Proceeding” means the above-captioned proceeding.

         b. “Competitor” means any entity involved in the manufacture or sale of medical devices and any person who, upon reasonable and good faith inquiry, could be determined to be employed by such an entity.

         c. “Competitor-Consultant” means a “Consultant” (as defined herein) who is not a Competitor but who currently is, or during the time (s)he is retained as a Consultant is or expects to be, retained directly or indirectly by a Competitor to conduct research or provide consulting services with respect to the design or function of a Competitor's medical devices.

         d. “Confidential Material” means any Document, Testimony, or Information that a Designating Party reasonably believes to be entitled to confidential treatment under Federal Rule of Civil Procedure 26(c)(1)(G) or other applicable laws or regulations and that the Party designates as such under this Order.

i. For purposes of this Order, Confidential Material includes, but is not limited to, the following categories of Information or Documents:
(1) Plaintiff s or a third-party patient's personal identifying Information, financial Information, or medical/insurance Information;
(2) A trade secret (as defined in the Uniform Trade Secrets Act) and other confidential and/or proprietary research, development, or Information such as business planning Information, technical data, manufacturing processes, product specifications, engineering and testing Information, distribution processes, or other business Information of commercial value or competitive sensitivity;
(3) All material, data, Copies, and Information obtained, derived, or generated from Confidential Material;
(4) Income tax returns (including attached schedules and forms, W-2 forms and 1099 forms); and/or
(5) Personnel or employment records of a person who is not a party to a case.
ii. Confidential Material does not include (this is not an exhaustive list):
(1) Documents, Testimony, or Information designated at any time as “not confidential” by order of any court; and/or
(2) Documents, Testimony, or Information obtained at any time by any person or entity through a Freedom of Information Act or other public records request.

         e. “Consultant” means a general or case-specific expert, litigation expert, consultant, or medical professional whom counsel has retained, or is considering for retention, to assist in preparing for the trial of the Action, whether or not designated as a testifying expert, and any person hired by any such Consultant to aid with litigation-related work.

         f. “Copy” or “Copies” includes electronic images, duplicates, extracts, summaries, compilations, or descriptions, including copies on any litigation-support application.

         g. “Court” means the Honorable Judge currently assigned to this Proceeding or any other judge to which any aspect of this Proceeding may be assigned. “Court” includes Court staff.

         h. “Designating Party” means the Party or non-party that designates Documents, Testimony, or Information as Confidential Material.

         i. “Disclose, ” “Disclosed” or “Disclosure” means to reveal, divulge, give, or make available Information, Documents or Testimony, or any portion of Documents or Testimony.

         j. “Document” or “Documents” has the meaning set out in Federal Rule of Civil Procedure 34(a) and includes electronically stored Information.

         k. “Information” includes the content of Documents or Testimony, as well as any matter derived therefrom or based thereon.

         l. “Party” or “Parties” means the parties to this Action and, as applicable, the Parties' respective corporate parents, subsidiaries, affiliates, successors, attorneys, principals, experts, Consultants, representatives, directors, officers, and employees.

         m. “Producing Party” means any Party or non-party that Discloses Documents, Testimony, or Information in this Proceeding.

         n. “Qualified Person” means any person or entity authorized to receive or see Confidential Material under the terms of this Order.

         o. “Receiving Party” means any Party to whom Documents, Testimony, or Information is Disclosed in this Proceeding.

         p. “Testimony” means all depositions, declarations, or other pre-trial statements, whether or not given under oath, produced and/or used in this Proceeding.

         2 Scope

         a. This Order governs all hardcopy and electronic materials, the Information contained therein, all other Information, and all Copies Disclosed in this Proceeding that are identified by the Designating Party as Confidential Material under this Order.

         b. This Order is binding upon all Parties (as defined above), their counsel, and all signatories to the Non-Disclosure Agreement attached hereto as Exhibit A, the terms of which are deemed to be included as part of this Order. This Order is subject to the Local Rules of the U.S. District Court for the District of Kansas and the Federal Rules of Civil Procedure on matters of procedure and calculation of time periods.

         i. To enable the Court to exercise its jurisdiction, Counsel for each Party shall maintain a list of all Qualified Persons to whom they or their client(s) have provided any Confidential Material, which list shall be available for inspection by the Court. Notwithstanding the foregoing, nothing in this subparagraph shall be construed to require any Party to Disclose the identity of any expert or Consultant not required to be Disclosed under the Federal Rules of Civil Procedure, or to require Disclosure prior to the time that such expert and/or Consultant is required to be Disclosed under the Federal Rules of Civil Procedure or applicable case management orders.

         c. Nonparties that so elect may avail themselves of, and agree to be bound by, the terms and conditions of this Order and thereby become a Designating Party for purposes of this Order.

         d. The entry of this Order does not preclude any Party from seeking further order of this Court, including modification of this Order, or from objecting to discovery that the Party believes to be improper.

         e. Nothing herein shall be construed as an admission or concession by a Designating Party that any designated Confidential Material constitutes material, relevant, or admissible evidence in this Action.

         f. Nothing herein shall be construed as an admission or agreement by the Receiving Party that anything designated as Confidential by the Designating Party is properly designated.

         g. Nothing in this Order is intended to prevent the use of, or reference to, in other jurisdictions the Documents produced in this Action that have not been designated as Confidential Material. Nothing in this Order is intended to prevent the use of, or reference to, in other jurisdictions the Confidential Material produced in this Action to the extent the Party using or referring to such Confidential Material has complied with Section 4.f, below.

         3. Designation of Confidential Material.

         a. Documents.

         i. Documents Produced in Image, PDF, or Hardcopy Form.

         (1) The Designating Party shall place a stamp or marking on each image that states in substance the following: “CONFIDENTIAL, SUBJECT TO PROTECTIVE ORDER”.

         (2) Such stamps or markings shall not obscure, alter, or interfere with the legibility of the original Document.

         (3) All Copies (as defined above) shall contain the same confidential stamp or marking as contained on the original.

         (4) The ESI protocol entered by the Court in this Action (the “ESI Protocol”) must be complied with to ...

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