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KING PHARMACEUTICALS. INC. v. BARR LABORATORIES

United States District Court, S.D. New York


April 30, 2004.

KING PHARMACEUTICALS. INC., JENCAP RESEARCH LTD., Plaintiffs. V. BARR LABORATORIES. INC., Defendant

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

PROTECTIVE ORDER

WHEREAS the plaintiffs to this action. King Pharmaceuticals, Inc. ("King") and Jencap Research. LTD., ("Jencap") (collectively "Plaintiffs") and the defendant Burr Laboratories, Inc. ("Defendant") possess confidential information which may he disclosed in providing initial disclosures, responding to discovery requests or otherwise in this action and which must be protected in order to preserve the legitimate business interests of the parties. and

WHEREAS Plaintiffs and Defendant have, through counsel stipulated to the entry of this Protective Order to prevent unnecessary dissemination or disclosure of such confidential information, and

  WHEREAS the parties have established good cause for entry of this Order.

  IT IS HEREBY ORDERED that: 1. Definitions

  (a) The term "Confidential Information" includes all information that the designating party believes constitutes, discloses, or relates to trade secrets, processes, operations. research, technical or developmental information, or apparatus, production, marketing, sales, shipments or other proprietary data or information of commercial value to such party (other than information described in Paragraph 1(c)).

  (b) Confidential Information may include, without limitation, documents produced in this action, during formal discovery or otherwise: answers to interrogatories and responses to requests for admission or other discovery requests: deposition, hearing, or trial transcripts; and tangible things or objects that are designated as containing or comprising Confidential Information. The information contained therein and all copies, abstracts, excerpts. analyses or other writings that contain, reflect, reveal, suggest or otherwise disclose such information shall also be deemed Confidential Information. Information originally designated as Confidential Information shall not retain that status after any ruling by the Court denying such status to it.

  (c) The term "Highly Confidential Information" includes, and shall be limited to information not otherwise publicly available that the designating party believes constitutes, discloses, or relates to information regarding (f) trade secrets or pending patent applications, (ii) scientific research and development information including, but not limited to, any New Drug Application or Abbreviated New Drug Application or other information received from or submitted to the Food and Drug Administration: (iii) financial data, sales, costs, margins, profitability and expenses with respect to any product or process: (iv) past, present and future market or business plans or strategies for existing or new products or processes, including, but the limited to competitive analysis, marketing strategies, and proprietary marketing tools; (v) past, present or future financial information or plans; (vi) customer and supplier information: and Civil Corporate organizational structure.

  (d) Highly Confidential Information may include, without limitation, documents produced in this action, during formal discovery or otherwise; answers to mien-oratories and responses to requests for admission or other discovery requests; deposition, hearing or trial transcripts: and tangible things or objects that are designated as containing or comprising Highly Confidential Information. The information contained therein and all copies, abstracts, excerpts, analyses or other writings that contain, reflect. reveal. suggest or otherwise disclose such information shall also be deemed Highly Confidential Information. Information originally designated as Highly Confidential Information shall not retain that status after any ruling by the Court denying such status to it.

  (e) The term "designating party" means the party designating documents or information as Confidential Information or Highly Confidential information under this Order.

  (f) The term "receiving party" shall mean the party to whom Confidential Information or Highly Confidential Information is disclosed.

  (g) Notwithstanding anything to the contrary herein, the description of Confidential information or Highly Confidential Information shall apply to all that information so designated by the designating party absent an order of the Court or subsequent written agreement of the designating party providing otherwise.

 

Designation of Confidential information or Highly Confidential information
  2. Each designating party who produces or discloses any material that it believes contains or comprises Confidential Information shall designate the same by marking "CONFIDENTIAL" on am document containing the Confidential Information. Each designating party who produces or discloses any material that it believes contains or comprises Highly Confidential Information shall designate the same by marking "HIGHLY CONFIDENTIAL" on any document containing the Highly Confidential Information. When documents or things are produced for inspection, the documents or things may be collectively designated as containing Confidential Information or Highly Confidential Information for purposes of the inspection, by letter or otherwise, without marking each document or thing "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL", and such documents or things will be treated as Confidential Information or Highly Confidential Information under this Order. Any documents selected for production will be designated by the producing party as CONFIDENTIAL or "HIGHLY CONFIDENTIAL" at the time when copies of such documents are produced.

  3. If any Confidential Information or Highly Confidential Information is produced by a non-party to this litigation pursuant to this Protective Order, such a non-party shall be considered a "designating party" within the meaning of that term as it is used in the context of this Order and both parties to this Order should be treated as receiving parties. The parties recognize that during the course of this litigation. Confidential Information or Highly Confidential Information that originated with a non-party and for which there exists an obligation of confidentiality may he produced. Such information that the designating party believes originated with a non-party, but is subject to a confidentiality obligation may be designated as Confidential Information or Highly Confidential Information and shall be subject to the restrictions on disclosure specified in Paragraphs 5 and 0. If a party to this Order is in possession of documents or information that might otherwise be subject to production that the party has agreed not to disclose pursuant to an agreement with a non-party to this litigation, nothing in this paragraph requires the designating party to produce such documents or information without first obtaining the non-party's consent, if the non-party does not consent to the production of such documents or information, the designating party shall promptly notify the requesting party of same following which the requesting party may move to compel the production of such documents or information from the designating party or seek production directly from the non-party refusing consent.

  4. In the event any designating party discovers, after it has produced information. that it has inadvertently produced Confidential Information or Highly Confidential Information that has not been correctly designated, the designating party may redesignate the information by a subsequent notice in writing, within ten (10) business days after discovery of such inadvertent disclosure, specifically identifying the redesignated information, in which event the parties shall henceforth treat such information in accord with this Protective Order, and shall undertake reasonable efforts to correct any disclosure of such information contrary to the redesignation. In addition, the redesignated document or other information must be reproduced by the redesignating party with the redesignated legend.

 

Disclosure of Confidential Information and Highly Confidential Information
  5. Information designated as Confidential Information may be disclosed only to the following:

  (a) Attorneys, employees and staff affiliated with any of the law firms appearing of record on behalf of Plaintiffs or Defendant in this action. At present, such firms are Jones Day. Williams & Connolly LLP; and Bondy & Schloss, LLP. but this provision shall include any other law firms whose attorneys enter an appearance:

  (b) Independent consultants or experts (and their staff) who arc not officers, directors or employees of a party, and who are retained by the attorneys for the parties identified in paragraph 5(a). either as technical consultants or expert witnesses for the purposes of this litigation, as long as these personnel comply with the procedure of Paragraph 16 herein;

  (c) any outside copying or exhibit preparation services;

  (d) the Court. Court personnel. Official Court Reporters, translators and interpreters to the extent that Confidential Information or Highly Confidential Information is disclosed at a deposition or court session which such reporter is transcribing;

  (e) the following in-house counsel employed by Plaintiffs:

1. John A. A. Bellamy. Esq., Executive Vice President and General Counsel.
2. Kurt J. Pomrenke, Esq., Vice President. Litigation/Labor & Employment.
(f) the following in-house counsel employed by Defendant:
1. Fred J. Killion. Esq., Senior Vice President and General Counsel
  The foregoing list in this Paragraph 5 may be expanded by mutual agreement in w riling by counsel for Plaintiffs and Defendant. In addition, to the extent that any of the in-house counsel listed above is replaced during the course of this litigation, replacement counsel may be substituted in this order. 6. Information designated as Highly Confidential Information may be disclosed only 10 the persons described in Paragraphs 5(a). (a), (b), (c) and (d). subject to the provisions of Paragraph 7 herein, and as detailed in Paragraph IS herein.

 

Use and Control of Confidential and Highly Confidential Information
  7. Before an expert consultant, as described in Paragraph 5(b) herein, is afforded access to another party's Confidential Information or Highly Confidential Information, the identify and current resume or curriculum vitae (including employment history, prior expert engagements., patents, publications and current business address) of the expert shall be served upon the attorneys of record for the other parties. The resume or curriculum vitae may be provided at any time after this Protective Order is signed by the parties. The party or parties receiving the expert consultant's name and resume or curriculum vitae will then have five (5) business days from the day of receipt of the name and resume or curriculum vitae of the expert to submit an objection, in writing, notifying the attorneys of record for the other parties that the party objects to such expert being shown Confidential Information or Highly Confidential Information and explaining the basis for the objection. During this time period, Confidential Information and Highly Confidential Information will not be disclosed to the expert. The parties will then have five (5) business days after an objection is raised during which they may agree on terms under which the expert may be given access to Confidential Information or Highly Confidential Information. During this time period, no Confidential Information or Highly Confidential Information may be disclosed to the expert. If they are unable to resolve their differences, the party objecting to the disclosure of Confidential Information or Highly Confidential Information may apply to the Court for relief, and the burden is on that party to demonstrate good cause why Confidential Information or Highly Confidential Information may not be shown to the designated expert. It no such application to the Court is made within seven (7) days of the notification of objection, the issue will be deemed waived, and the party seeking to provide Confidential Information or Highly Confidential information to an expert will be permitted to do so provided the expert consultant executes the Declaration of Compliance annexed hereto as Exhibit 1. In the event an application is made to the Court, however, the materials will continue to be treated as Confidential Information or Highly Confidential Information in accordance with this Protective Order during the time the Court considers the application and will not be disclosed to the expert consultant.

  8. All information designated as Confidential Information or Highly Confidential Information pursuant to this Order and disclosed in this litigation shall be used by a recipient thereof solely for the purposes of this litigation and not for any other purpose. It shall be the duty of each party and each individual having notice of this Protective Order to comply with this Order from the time of such notice.

  9. If Confidential Information or Highly Confidential information is contained in deposition testimony, such information may be designated as Confidential Information or Highly Confidential Information, respectively, in accordance with this Order by notifying the other party in writing, within thirty (30) calendar days of receipt of the portion of the official transcript containing such information, of the specific pages and lines of the transcript which contain Confidential Information or Highly Confidential Information. All deposition testimony shall be treated as containing Highly Confidential Information and subject to this Protective Order until thirty (30) calendar days after the official transcript of such testimony is received. Unless so designated, any confidentiality is waived after the expiration of that thirty (30) day period unless otherwise stipulated or ordered. Only persons designated in Paragraphs 5(a) through (f) above will be allowed to attend that portion of any deposition in which Confidential Information of a party is used or elicited from the deponent. Only persons designated in Paragraphs 5(a) through (d) will he allowed to attend that portion of any deposition in which Highly Confidential Information of a party is used or elicited from the deponent. Once a party has used Confidential or Highly Confidential documents or information in examining a witness. regardless of whether by deposition or at a hearing or trial, the other party may use said Confidential or Highly Confidential documents or information in us examination of the same witness without any further action.

  10. If during a Court proceeding Confidential Information or Highly Confidential information is likely to be revealed, any party may request that the proceeding be held in camera. If such request is granted by the Court, the transcript of such proceedings shall be treated as a deposition transcript for the purposes of this Order

  11. All information subject to confidential treatment in accordance with the terms of tins Protective Order that is filed with the Court, and any pleadings, motions or other papers filed with the Court disclosing any Confidential Information or Highly Confidential Information, shall be filed under seal and kept under seal until further order of the Court. Where possible, only the protected portions of filings with the Court shall be filed under seal.

  Miscellaneous

  12. This Protective Order is intended to provide a mechanism for handling the disclosure or production of Confidential Information or Highly Confidential Information to which there is no objection other than confidentiality. Each party reserves the right to object to any disclosure of information or production of any documents it deems to contain Confidential Information or Highly Confidential Information on any other ground it may deem appropriate. and any party may move for relief from, or general or particular modification of, the mechanism herein set forth or the application of this Order in any particular circumstance.

  13. This Protective Order may he amended by Court order or by written agreement of the parties hereto. This Protective Order shall remain in force and effect indefinitely until modified, superseded or terminated by Order of this Court. Amendments to designations of specific documents or items as constituting or containing Confidential or Highly Confidential Information may he made by Court order or by written agreement of the party or non-party that designated the document or item as Confidential or Highly Confidential.

  14. Upon final termination of this action (including all appeals) with respect to any party receiving any Confidential information or Highly Confidential Information and at the option of the designating party, the receiving party shall, within sixty (60) days of such termination, either return to the designating party or destroy all Confidential Information and Highly Confidential Information in its possession. Counsel for the receiving party shall ensure that any consultants or experts retained under Paragraph 5(b) herein abide by this provision. In either event, the receiving party shall specifically describe the materials returned or destroyed and certify their return or destruction, with the exception that one outside counsel for each party may retain one copy of each of: the pleadings or other papers filed with the Court or served in the course of the litigation, the depositions, the deposition exhibits, the trial record and attorney work product documents.

  15. No party or person shall disclose or cause to be disclosed to anyone not specified in Paragraphs 5 and 6 as being entitled to receive it. any information from another party designated as Confidential Information or Highly Confidential Information under this Protective Order without prior written consent of the designating party or an Order of this Court. If the receiving party learns that Confidential Information or Highly Confidential information produced to it is disclosed to any person other than in the manner authorized by this Order, the receiving party learning of the disclosure must immediately inform the designating party of all pertinent facts relating to such disclosure and shall make every effort to retrieve such Confidential Information or Highly Confidential Information and prevent disclosure by each unauthorized person who received such information.

  16. No expert or consultant designated in accordance with Paragraph 5(b) above shall have access to Confidential Information or Highly Confidential Information without first signing a Declaration of Compliance with the Protective Order (in the form attached as Exhibit 1 hereto). A file of all such original written signed Declarations shall he maintained by counsel for the party obtaining them, and a copy of such signed Declarations shall be served on the attorneys of record for other party(s) promptly upon execution by the expert or consultant.

  17. Nothing herein shall prevent any party or non-party from seeking additional relief from the Court not specified in this Order.

  18. Nothing herein shall prevent: (a) any party from disclosing its own Confidential Information or Highly Confidential Information in any manner that it considers appropriate; (b) counsel for either party from showing or using Confidential Information or Highly Confidential Information obtained from the opposing party during examination, at deposition or trial, of any current or former officer, employee or retained expert of the party who designated the information confidential; (c) the disclosure of Confidential Information or Highly Confidential Information of a designating party to any person who either authored in whole or in part, or who received while he or she was an officer, employee or otherwise affiliated with the designating party, the Confidential Information or Highly Confidential Information, provided such person signs the Declaration of Compliance annexed hereto as Exhibit 1 to this protective order prior to such disclosure.

  19. Nothing herein shall prevent a receiving party from contending (for the purposes of securing an order so providing from the Court) that any or all Confidential Information or Highly Confidential Information is not confidential or otherwise not entitled to protection. Any receiving party may at any time request that the designating party cancel the Confidential Information or Highly Confidential Information designation with respect to any document, object or information. Such request (referred to herein as a "Confidentiality Challenge") shall be written, shall be served on counsel for the designating party, and shall particularly identify the designated document, object, or information that the receiving party contends is not confidential and the reasons supporting its contention. If the designating party does not agree to remove the Confidential Information or Highly Confidential Information designation, then the designating party shall within five (5) business days of receiving the Confidentiality Challenge file a motion to preserve the Confidential or Highly Confidential designation for the challenged document, object, or information. The burden of proving that the document, object, or information is Confidential or Highly Confidential Information shall rest with the designating party. Failure to file a motion to preserve the confidentiality of the challenged document, object, or information within five (?) business days of receipt of the Confidentiality Challenge, constitutes a waiver of any confidentiality designation for the challenged document, object, or information. Production of documents and things for purpose of inspection and copying shall not constitute a waiver of confidentiality, privilege or immunity from discovery as to such documents or any other information. 20. All documents and things produced by a party for inspection by the other shall he retained by the party producing the same and. during the pendency of this litigation, shall be made available for reinspection for good cause pursuant to the terms of this Order on reasonable notice and at reasonable times upon request.

  21. The parties have agreed that inadvertent production of documents or information subject to the attorney-client privilege or work product immunity (despite the parties" reasonable efforts to prescreen such documents and information prior to production) does not waive the attorney-client privilege or work product immunity. Upon learning that such inadvertent production was made, the producing party shall promptly notify the receiving party and specifically identify the documents or information that were inadvertently produced. The receiving party shall, within ten (10) business days of being so notified, return the identified documents or information and all copies to the producing party without limitation or qualification. The receiving party's return of the documents shall be without prejudice to its right to move for an order compelling production of the documents or information on grounds other than inadvertent production.

  22. All documents and things produced for inspection may be numbered by the producing party and all produced documents and things which are identified by counsel for the receiving party for copying or imaging at the request of opposing counsel shall be numbered by the producing party.

  23. Nothing in this Order shall bar or otherwise restrict any attorney identified in Paragraph 5(a) herein from rendering advice to their client with respect to this litigation and, in the course thereof, referring to or relying upon their examination of confidential information, provided, however, that in rendering such advice and in otherwise communicating with their client, the attorney shall not make any disclosure of Confidential Information or Highly Confidential Information until and unless said recipient is qualified to review the information.

  24. Confidential information produced by third parties may he designated by them as Confidential Information or Highly Confidential Information pursuant to the terms of this Protective Order and. when so designated, shall be treated by the parties in conformance with this Protective Order.

  25. This Order shall not he construed to prevent any party from making use of information designated Confidential Information or Highly Confidential Information that: (a) was lawfully in their possession prior to the production by the designating party; (b) appears in any issued patent or printed publication, or other published material available to the general public, without fault of the receiving party: (c) was or is hereafter obtained from a source or sources having the lawful right to disclose such information: (d) was or is lawfully discovered, independently by the receiving party, through means not under an obligation of secrecy to any other party or parties; or (c) is exempted from the operation of this Order by the express written consent of the party producing such Confidential Information or Highly Confidential Information.

  26. This Order shall continue in effect after termination of this action and continue to be binding upon all persons to whom Confidential Information or Highly Confidential Information is disclosed hereunder. IT IS HEREBY ORDERED.

  Notwithstanding anything to the contrary harein, any papers filed under seal in this action may be made part of the public record on or after 4/30, 2009 unisos the Court otherwise orders.

  SO ORDERED. EXHIBIT 1

  DECLARATION OF COMPLIANCE

  I, the undersigned, hereby acknowledge that I have read the Protective Order entered in this action, understand the terms thereof, agree to be bound by such terms, and agree to be subject to the jurisdiction of said Court in all matters relating to said Protective Order. I acknowledge that 1 will treat all information designated as "Confidential" and/or "Highly Confidential" strictly in accordance with the terms and conditions of this Protective Order, and that I understand that any unauthorized use of such material that I receive may constitute contempt of court.

20040430

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