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Klawer v. SMI Liquidating

March 5, 2009

KENT J. KLAWER, PLAINTIFF,
v.
SMI LIQUIDATING, INC., F/K/A SORENSON MEDICAL, INC., A UTAH CORPORATION; ASTRAZENECA PHARMACEUTICALS LP, A DELAWARE CORPORATION; ASTRAZENECA LP, A DELAWARE CORPORATION; ZENECA HOLDINGS, INC., A DELAWARE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Wistrich, United States Magistrate Judge

STIPULATION AND PROTECTIVE ORDER RE: CONFIDENTIALITY OF DISCOVERY MATERIALS

The Parties hereby stipulate and agree, and based on the stipulation of the parties, it is hereby ORDERED as follows:

1. As used in this Stipulation and Order, the term "Confidential Discovery Material" means documents and other information produced in the course of discovery in this action that are designated as "Confidential" or "Trade Secret" pursuant to the terms of this Order. The term "documents" as used herein shall be interpreted broadly to encompass hard-copy and imaged documents as well as electronically stored information ("ESI") of any type. This Order is applicable to all forms of discovery, including but not limited to, deposition testimony, answers to interrogatories, documents produced in response to requests for production, responses to requests for admissions, medical records and any documents recorded on computer disks. The parties may designate any such materials as "confidential" or "Confidential Discovery Material," under the terms of this Stipulated and Order.

2. The parties to this Stipulation and Order may designate as "Confidential" or "Trade Secret," pursuant to the terms of this Stipulation and Order, documents or other discovery material to the extent they consist of or include trade secret or confidential research, development, competitive, proprietary, or commercial information and may include financial information, information relating to ownership or control of any non-public company, and any information protected from disclosure by any privacy law or other government regulation, as well as any other type of information given confidential status by the court. Any failure to designate a document "Trade Secret" shall not waive trade secret protection for any document otherwise designated "Confidential" pursuant to this Protective Order, and shall not waive or preclude any future "Trade Secret" designation.

3. Any person subject to this Order who receives any Confidential Discovery Material in the course of discovery in this action shall not disclose such Confidential Discovery Material to anyone else except as expressly permitted by this Order.

4. The producing party may designate documents containing confidential or trade secret information as described herein as Confidential Discovery Material by stamping or otherwise clearly marking the document as "Confidential" or "Trade Secret" in such a manner that will not interfere with legibility or audibility.

5. With respect to deposition transcripts and exhibits, a party may indicate on the record that a question calls for Confidential Discovery Material, in which case the text in the transcript where these questions or answers occur shall be specially marked as a separate page stamped "Confidential Information Governed By Protective Order" by the court reporter and bound in a separate volume. Alternatively, the party may designate information disclosed at deposition as Confidential Discovery Material by notifying the other party(ies) in writing within thirty (30) days of receipt of the transcript of the specific pages and lines which are to be designated Confidential Discovery Material. During such thirty (30) day period, the entire transcript shall be treated as confidential. For convenience, the parties may agree that entire deposition transcripts shall be treated as Confidential Discovery Material.

6. Documents and information produced by a third party shall be treated as Confidential Discovery Material for thirty (30) calendar days after production, to allow the parties to review and assess the documents and information for confidentiality and designation under this Order.

7. To the extent that Confidential Discovery Material stored or recorded in the form of electronic or magnetic media (including information, files, databases or programs stored on any digital or analog machine-readable device, computers, Internet sites, discs, networks, or tapes ("Electronic Discovery Material") is produced in such form, the producing party may designate it as confidential by cover letter referring generally to the Electronic Discovery Material, or by designation in the accompanying load file. Whenever a party or other person subject to this order to whom confidential Electronic Discovery Material is produce reduces it to hardcopy or image form, that person shall mark the hardcopy or image form with the "Confidential" or "Trade Secret" designation.

8. If at any time prior to the trial of this action a party realizes that previously undesignated documents or other material should be designated as Confidential Discovery Material, the party may so designate by advising all other parties in writing. The designated documents or material will thereafter be treated as Confidential Discovery Material pursuant to this Order. Upon receipt of such designation in writing, the persons subject to this order shall take all reasonable and appropriate action to notify persons to whom they have provided the discovery material about the protected status of the newly designated Confidential Discovery Material, and to retrieve the newly designated Confidential Discovery Material from any person who is not permitted by this Order to have Confidential Discovery Material. However, no party shall be penalized in any way for disclosing such materials prior to receiving notice of this belated designation.

9. No person subject to this order other than the designating party shall disclose any Confidential Discovery Material to any other person, except as follows:

(a) Counsel for the parties in this action, including any paralegal, clerical, consulting, professional and other staff employed or retained by counsel for work on this action;

(b) With respect to a specific document, the document's author, addressees, and any other person shown on the face of the document as having received a copy;

(c) Any witness who counsel for a party in good faith believes may be called to testify at trial or deposition in this action, provided such person has first executed a non-disclosure agreement in the form attached to this Order; however, if the witness is currently an employee, officer, director, contractor, subcontractor or consultant of an entity that is presently engaged in the research, development, manufacture, or sale of any anesthetic or medical device (pain pump) that competes with anesthetics or medical devices researched, developed, manufactured or sold by the designating party, the party seeking the testimony must first receive written consent of the counsel for the ...


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