United States District Court, D. Kansas
AGREED STIPULATED PROTECTIVE ORDER OF
P. O'Hara, U.S. Magistrate Judge
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.
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:
“Action” or “Proceeding” means the
“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.
“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.
“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
(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
(1) Documents, Testimony, or Information designated at any
time as “not confidential” by order of any court;
(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.
“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
“Copy” or “Copies” includes
electronic images, duplicates, extracts, summaries,
compilations, or descriptions, including copies on any
“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.
“Designating Party” means the Party or non-party
that designates Documents, Testimony, or Information as
“Disclose, ” “Disclosed” or
“Disclosure” means to reveal, divulge, give, or
make available Information, Documents or Testimony, or any
portion of Documents or Testimony.
“Document” or “Documents” has the
meaning set out in Federal Rule of Civil Procedure 34(a) and
includes electronically stored Information.
“Information” includes the content of Documents
or Testimony, as well as any matter derived therefrom or
“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.
“Producing Party” means any Party or non-party
that Discloses Documents, Testimony, or Information in this
“Qualified Person” means any person or entity
authorized to receive or see Confidential Material under the
terms of this Order.
“Receiving Party” means any Party to whom
Documents, Testimony, or Information is Disclosed in this
“Testimony” means all depositions, declarations,
or other pre-trial statements, whether or not given under
oath, produced and/or used in this Proceeding.
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 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.
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
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
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.
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.
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.
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.
Designation of Confidential
Documents Produced in Image, PDF, or Hardcopy Form.
Designating Party shall place a stamp or marking on each
image that states in substance the following:
“CONFIDENTIAL, SUBJECT TO PROTECTIVE ORDER”.
Such stamps or markings shall not obscure, alter, or
interfere with the legibility of the original Document.
Copies (as defined above) shall contain the same confidential
stamp or marking as contained on the original.
ESI protocol entered by the Court in this Action (the
“ESI Protocol”) must be complied with to ...