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Toomey v. Coloplast Corp.

United States District Court, W.D. North Carolina

June 12, 2019

BETTY SUE TOOMEY AND PERRY TOOMEY, Plaintiffs,
v.
COLOPLAST CORP., Defendant.

          ERIC M. PRZYBYSZ (PRO HAC VICE) FEARS NACHAWATI, PLLC JANET WARD BLACK WARD BLACK, P.A. ATTORNEYS FOR PLAINTIFFS BETTY SUE TOOMEY AND PERRY TOOMEY

          URSULA M. HENNINGER KING & SPALDING LLP ATTORNEY FOR DEFENDANT COLOPLAST CORP.

          AGREED PROTECTIVE ORDER

          ROBERT J. CONRAD JR. UNITED STATES DISTRICT JUDGE.

         I. SCOPE OF ORDER

         Disclosure and discovery in this proceeding may involve production of confidential, proprietary, and private information for which special protection from public disclosure and from any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter this Agreed Protective Order in this matter.

         II. THE ORDER

         The parties have agreed to be bound by the terms of this Agreed Protective Order and to request its entry by the presiding judge. It is hereby ORDERED as follows:

         A. DISCOVERY PHASE

         1. For purposes of this Order, the following definitions shall apply: (a) the terms "document" and "electronically stored information" ("ESI") shall have the full meaning ascribed to them by the Federal Rules of Civil Procedure ("Fed. R. Civ. P."); and (b) the term "producing party" shall be defined as any party or non- party who is required to produce or provide materials or testimony containing confidential information.

         2. A producing party may designate as "CONFIDENTIAL" any material, including any documents or ESI, the producing party believes in good faith constitutes or discloses information that qualifies for protection pursuant to Fed.R.Civ.P. 26(c), specifically information that is trade secret or other confidential research, development, or commercial information, and materials that are deemed confidential under Federal Drug Administration ("FDA") regulations and Health Insurance Portability and Accountability Act ("HIPAA") statutes and/or regulations.

         3. Confidential information may be further designated as "HIGHLY CONFIDENTIAL" if a Defendant produces materials that it believes in good faith would, if disclosed, cause substantial economic harm to the competitive position of the entity from which the information was obtained because it is HIGHLY CONFIDENTIAL research and development material on a new product that has not been approved or cleared by the FDA or a similar regulatory body or reflects a party's price competitiveness in the market or marketing business strategies of a party concerning a current or new product. The plaintiff(s) will inform the producing party of its intent to disclose such information to any individual who is currently, or who at any time during the pendency of this litigation becomes, a consultant to a competitor of the producing party in the pelvic organ mesh business, or is a consultant to an entity actively investigating entering such business, and plaintiff(s) will follow the procedures for disclosure of such materials to such individual as provided in Paragraph II.A.8 of this Protective Order.

         4. Challenges to Designations or Redacted Information: Any party may at any time challenge the redaction or the designation of information as CONFIDENTIAL or HIGHLY CONFIDENTIAL by providing written notice of its objection to the designating party, or, in the case of a deposition, either on the record at a deposition or in writing later. Any challenge to the confidentiality designation must be specific as to which document(s) or other material is being challenged by listing Bates numbers or other identifying information if no Bates numbers are available; categorical or blanket challenges are not permitted. If, after a meet-and-confer process, the parties cannot reach agreement, either the designating party or challenging party may, on reasonable notice, apply for an appropriate ruling from the Court. Prior to filing such a challenge, the parties must reach an agreed briefing schedule that allows the designating party a reasonable amount of time to collect supporting affidavits or other evidence in support of its confidentiality designation. The disputed material shall continue to be treated as designated, or redacted, until the Court orders otherwise-this includes any exhibits to the application to the Court, which should be filed under seal or otherwise handled in accordance with local Court procedures to prevent public disclosure until the Court orders otherwise. In any such application concerning a ruling on confidentiality or redacted information, the party claiming the designation of confidentiality or redaction has the burden of establishing that such confidential designation or redaction is proper.

         5. No. person or party subject to this Order shall distribute, transmit, or otherwise divulge any material marked CONFIDENTIAL or HIGHLY CONFIDENTIAL, except in accordance with this Order. Any notes, summaries, compilations, copies, electronic images or databases containing CONFIDENTIAL or HIGHLY CONFIDENTIAL information shall be subject to the terms of this Order to the same extent as the material or information from which such notes, summaries, compilations, copies, electronic images or databases is made or derived. Nothing in this Order shall restrict a producing party's use of their own documents.

         6. Use of CONFIDENTIAL Material Limited to this Action: Any document or other material which is markedCONFIDENTIAL or HIGHLY CONFIDENTIAL,or the contents thereof, may be disclosed to or used by only this Court and its personnel, court reporters, deponents, a party, or a party's attorney, paralegal, expert witness, or consultant, and only for the purpose of this action or appeal therefrom. Nothing contained in this Order shall prevent the use of any document or the contents thereof, at any deposition taken in this action. If a party intends to use material that has been marked as HIGHLY CONFIDENTIAL at the deposition of an employee or former employee of a non-producing party in this litigation, then the party shall notify the producing party ten (10) days in advance of the deposition that it intends to use that category of ...


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