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Foreman v. Otsuka America Pharmaceutical, Inc.

United States District Court, S.D. Georgia, Savannah Division

March 20, 2019

PATRICIA BOWERS, as Legal Guardian to NAJEE FOREMAN, Plaintiff,
v.
OTSUKA AMERICA PHARMACEUTICAL, INC., ET AL., Defendants.

          STIPULATED PROTECTIVE ORDER

         1. PROCEEDINGS AND FORM OF INFORMATION GOVERNED

         1.1 This Protective Order (“Protective Order”) shall govern any document, information or other thing that is designated as containing “Confidential Information, ” as defined herein, and is furnished by any party or non-party to any party in connection with No. 4:17-CV-89 WTM/JEG (referred to herein as “this action”). The Parties intended to be bound by this Protective Order include:

a. Plaintiff Patricia Bowers, as legal guardian to Najee Foreman;
b. Defendant Bristol-Myers Squibb Company; and
c. Defendant Otsuka America Pharmaceutical, Inc.

         1.2 For purposes of this Order, “document” is accorded its broadest possible meaning, and includes, without limitation, the whole page or file or any portion thereof of any written, printed or graphic matter, and any computer file, record or tape produced by or obtained from any party or non-party, any electronically stored information, or any copy, extract, or complete or partial summary prepared therefrom, and any document or thing covered by Fed.R.Civ.P. 34.

         2. TYPES OF MATERIALS THAT MAY BE DESIGNATED “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER”

         2.1 A party or non-party may designate as “Confidential - Subject to Protective Order” all or any portion of the following materials that contain Confidential Information (as defined in Paragraph 2.2): documents, answers to interrogatories, responses to requests for admission, deposition testimony, deposition transcripts and exhibits, other responses to requests for information, and/or other written information produced in response to discovery requests in this litigation by any party (hereinafter, collectively, “Discovery Material”).

         2.2 Confidential Information includes any Discovery Material that the designating party reasonably and in good faith believes not to be in the public domain and to contain any (1) trade secrets or other information of a non-public nature the release of which is considered by the designating party to be commercially harmful or personally sensitive, confidential and/or proprietary; (2) other proprietary research, analysis, development, marketing, financial or commercial information, including without limitation information the release of which is deemed commercially harmful or personally sensitive; or (3) protected health information, which has the same definition as set forth in 45 CFR § 160.103. Examples of such Confidential Information may include, but are not limited to the designating party's:

a. Customer names;
b. Current proprietary licensing, distribution, marketing, design, development, research and manufacturing information regarding products and medicines, whether previously or currently marketed or under development (not to include disseminated marketing materials or materials that, on its face, was published to the general public);
c. Personnel records;
d. Financial information not publicly filed with any federal or state regulatory authorities or not contained within any publicly available quarterly or annual reports;
e. Private medical information that identifies a person unless such identifying information is redacted;
f. Information submitted to any governmental or regulatory agency, which information is exempt from public disclosure;
g. All material, data and information excerpted from Confidential Information.

         2.3 Any copies, reproductions, excerpts, summaries, compilations, notes, memoranda, or analyses that paraphrase, extract, or contain Confidential Information and any electronic image or database containing Confidential Information are subject to the terms of this Protective Order to the same extent as the material or information from which such summary, compilation, notes, copy, memoranda, analysis, electronic image, or database is derived.

         3. ACCESS TO AND USE OF CONFIDENTIAL INFORMATION

         3.1 All information designated as “ Confidential - Subject to Protective Order” is to be used solely for the purpose of this action and not for any other purpose.

         3.2 All materials containing Confidential Information must be maintained at a location and under circumstances to ensure that access is limited to those persons entitled to have access under the Protective Order 3.3 Access to information marked “Confidential - Subject to Protective Order” is limited to, and only to, the following “qualified persons”:

a. The parties listed in Paragraph 1.1 including the employees and staff of such parties;
b. Outside attorneys of record to any party in this action and, if the attorney of record is a member of a law firm, the employees and staff of the law firm (collectively “Outside Counsel”), provided that before any such person is permitted access to any of the Confidential Information, such person must be informed of the existence and contents of this Protective Order;
c. Organizations (e.g., jury research consultants, graphics consultants, and case and documents management consultants) retained by a party or Outside Counsel to provide litigation support services in this action, provided that before any such person is permitted access to any of the Confidential information, such person must be informed of the existence and contents of this Protective Order and execute a declaration, in substantially the same form attached hereto as Exhibit A, agreeing to be bound by the terms of the Protective Order;
d. Independent experts and consultants retained in this action by a party or Outside Counsel (including both testifying and non-testifying experts), insofar as Outside Counsel may deem it necessary for the preparation or trial of this case to consult with such experts or consultants, provided that each such expert or consultant is informed of the existence and contents of this Protective Order and execute a declaration, in substantially the same form attached hereto as Exhibit A, agreeing to be bound by the terms of the Protective Order;
e. The Court, its personnel, and any court reporters, stenographers, and videographers involved in taking or transcribing testimony in this action;
f. Special Masters, Settlement Masters, Mediators and their staff enlisted by the parties to assist in the resolution of this matter;
g. A person identified in the document marked “Confidential - Subject to Protective Order” as an author, source, addressee, or recipient of the communication or document, or who already has a copy of the document marked “Confidential - Subject to Protective Order”;
h. A deponent or witness at a deposition or pre-trial hearing, provided that each such deponent or witness is informed of the existence and contents of this Protective Order and best efforts have been undertaken to have the witness execute a declaration, in substantially the same form attached hereto as Exhibit A, agreeing to be bound by the terms of the Protective Order, or consent under oath on the record to abide by its provisions; and
i. Such other persons as hereafter may be designated by written agreement in this action or by order of the Court.

         3.4 Notwithstanding the provisions in Paragraph 3.3 above, Confidential Information may be disclosed, at deposition or otherwise, to any employee of the party or non-party producing such information or to any author or recipient of the Confidential Information unless a different result is agreed to by counsel for the parties.

         3.5 Nothing in this Order precludes a party from introducing into evidence at an evidentiary hearing, motion hearing, or trial any Confidential Information that is admissible under applicable law, subject to the provisions of this Order.

         3.6 If a party or non-party reasonably and in good faith believes that the disclosure of extremely sensitive Confidential Information to any person other than Outside Counsel for a party would create a substantial risk of serious harm that could not be avoided by less restrictive means, the party or non-party may further designate such Confidential Information as “Outside Attorneys' Eyes Only.” The Attorneys' Eyes Only designation refers to such documents, data, and other materials that the party or non-party believes in good faith contain information of such a confidential or sensitive nature as to pose a significant risk of (i) undue harm to the business or personal reputation of any individual or entity (whether or not a party to the litigation) or (ii) unnecessary disclosure of trade secrets, proprietary or commercial information, competitive business information, or statutorily confidential information. In addition to the protections provided herein for Confidential Information, any documents or information designated as “Outside Attorneys' Eyes Only” must not be disclosed to the individuals identified in subparagraphs (a) or (d) of Paragraph 3.3 above, except (i) bona fide outside consultants and experts who are or may be retained to analyze the documents or information contained therein and who are not either current or former employees of a competitor of the Defendants or currently involved in the design, development, or manufacturing of psychiatric drugs for a competitor of the Defendants, (ii) any witness who had prior, authorized access to the particular documents or information pursuant to his or her assigned job duties and in the ordinary course of business, or (iii) persons or organizations for whom a party is legally obligated to disclose information. Regarding current consultants of competitors of producing party, disclosure may be made to those consultants who merely provide lectures or presentations to the public (such as speaker programs or grand rounds) or who merely receive funding from a competitor as an investigator in clinical trials for psychiatric drugs so long as the consultant does not also participate in the design, development, or manufacturing of psychiatric drugs for that competitor. All information designated as “Outside Attorneys' Eyes Only” is to be used solely for purposes of this action and not for any other purpose. Consultants who may receive documents or provision must be informed of the existence and contents of this Protective Order and execute a declaration, in substantially the same form attached hereto as Exhibit A, agreeing to be bound by the terms of the Protective Order.

         4. DESIGNATION OF INFORMATION AS “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” OR “OUTSIDE ATTORNEYS' EYES ONLY”

         4.1 If a party or non-party reasonably and in good faith believes that information produced in this action contains Confidential Information, that party may designate the information as “Confidential - Subject to Protective ...


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