The opinion of the court was delivered by: Marc L. Goldman, U.S. Magistrate Judge
[PROPOSED] PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following order shall govern the production or provision of confidential information or things by the parties in this case and any third parties (provided such third parties recognize and accept the procedures herein) for the purpose of responding to discovery requests or inquiries.
1. Any party to this action, and any non-party from whom discovery is sought in connection with this action, may designate as "Confidential" or "Highly Confidential" any documents, testimony or other discovery material that contains information of a confidential nature ("confidential information"). The term "Party" shall refer to the named Parties in this litigation; all predecessors and successors thereof; all present divisions, subsidiaries or affiliates of any of the foregoing entities; and all directors, officers, employees, agents, attorneys, or other representatives of any of the foregoing entities.
2. No "Confidential" designation shall be made unless the designating party (or non-party from whom discovery is sought) reasonably believes in good faith that the designated material constitutes confidential research, development, financial, technical or commercial information or other information the receiving party would not have access to but for this lawsuit. Such material shall include information that is not freely accessible by the public, information to which the producing party's employees have only limited access, and/or information, the dissemination or disclosure of which would present a real or potential economic threat to the producing party. No "Highly Confidential" designation shall be made unless the designating party (or non-party from whom discovery is sought) reasonably believes in good faith that the designated material comprises or contains competitively sensitive information that could be used by the receiving party to obtain a business (not legal) advantage over the producing party, including, but not limited to, trade secrets, highly sensitive, non-public technical information, documents disclosing the past, present, or intended design, development, configuration, materials, manufacture, testing or trial, and the results of such testing or trials, of the products of any Party, documents or information related to damages (e.g. sales numbers, profit margins), or documents or information related to pending and not yet published patent applications.
3. Material designated as "Confidential" or "Highly Confidential" shall refer to confidential information (as defined above), including documents, data and information, answers to interrogatories, answers to deposition questions (if the deposition is so designated), responses to requests for admission, affidavits, expert reports, and any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal confidential information.
4. Unless and until the Court rules otherwise, material marked as "Confidential" or "Highly Confidential" shall be maintained in confidence by the party to whom such material is produced and shall not be disclosed to any person except:
(a) Attorneys of record and associated counsel in this litigation, employees of such attorneys, counsel to whom it is necessary that the information be disclosed for purposes of this litigation, and vendors or service providers retained by the parties or attorneys of record, including but not limited to translators and litigation support services. As used herein, "associated counsel" shall mean attorneys who are retained to represent or advise a party for purposes of this litigation, including U.S. bar admitted and located contract attorneys, attorneys of record from Morris, Nichols, Arsht & Tunnell LLP, Keker & Van Nest LLP, and Knobbe Martens Olson & Bear LLP in Edwards Lifesciences AG v. CoreValve, Inc. (D. Del. 08-cv-00091) and Edwards Lifesciences AG v. Medtronic, Inc. (D. Del. 09-873-GMS) (collectively "the Delaware actions"), and attorneys of record from Kilpatrick Townsend & Stockton LLP in Medtronic, Inc. v. Edwards Lifesciences Corp. (D. Minn. 11-cv-1650) ("the Minnesota action");
(b) Any person hired by a party or its attorneys of record in this litigation, including testifying experts, investigators, consulting experts, and any other independent consultant, each of whom is not a competitor or employed by a competitor of the producing party or an agent of a competitor of the producing party, and who is not employed by or associated with either party, and who agrees in writing to be bound by the terms of this Protective Order. Each of these individuals must provide the following information: (i) the individual's name and business title; (ii) business address; (iii) business or profession; (iv) the individual's CV; (v) any previous or current relationship (personal or professional) with any of the parties; (vi) a list of other cases in which the individual has testified (at trial or deposition) within the last six years; (vii) a list of all companies with which the individual has been employed within the last four years and a brief description of the subject matter of the employment; and (viii) a complete and signed Protective Order Undertaking, attached hereto as Exhibit A. The Protective Order Undertaking must be served on the producing party before any access is allowed to the producing party's confidential information. Attorneys for the producing party shall have ten (10) business days from the receipt of the Protective Order Undertaking to object in writing to disclosure of confidential information to the identified expert or consultant. After the expiration of the 10-day period, if no objection has been asserted, then the confidential information may be disclosed pursuant to the terms of this Protective Order. Any objection must set forth in detail the grounds on which it is based. Should the parties disagree with the basis for the objection(s), the disclosing party must first attempt in good faith to resolve the objection(s) informally with the objecting party. If the informal efforts do not resolve the dispute within five (5) business days, the disclosing party may file a motion requesting that the objection(s) be quashed. The objecting party shall have the burden of proof by a preponderance of evidence on the issue of the sufficiency the objection(s). Pending a ruling by the Court upon any such objection(s), the confidential information shall not be disclosed to the person objected to by the objecting party;
(c) Employees of a person qualified under paragraph 4(b) above, each of whom is not a competitor or employed by a competitor of the producing party or an agent of a competitor of the producing party, and who is not employed by or associated with either party. Such employees must sign a Protective Order Undertaking, and such Protective Order Undertaking must be retained and preserved during this litigation by the attorney of record, but such Protective Order Undertaking need not be disclosed to the producing party, unless the Court for good cause orders otherwise;
(d) Jury consultant(s) and/or mock jurors, each of whom is not a competitor or employed by a competitor of the producing party or an agent of a competitor of the producing party, and who is not employed by or associated with either party. Such jury consultant(s) and/or mock jurors must sign a Protective Order Undertaking, and such Protective Order Undertaking must be retained and preserved during this litigation by the attorney of record, but such Protective Order Undertaking need not be disclosed to the producing party, unless the Court for good cause orders otherwise;
(e) Two current in-house attorneys per side, each of whom has been previously identified to and consented to by the producing party. Such attorneys must sign a Protective Order Undertaking, and such Protective Order Undertaking must be retained and preserved during this litigation by the attorney of record, but such Protective Order Undertaking need not be disclosed to the producing party, unless the Court for good cause orders otherwise. A party designating an in-house attorney under this Paragraph must, as a part of that designation, state whether the designated attorney will be provided access to both "Confidential" and "Highly Confidential" information or will be provided access to only "Confidential" information. Any party who designates an in-house attorney to receive only "Confidential" information subsequently may, upon written notice, modify its designation, subject to triggering the prosecution bar of Paragraph 6, so that the in-house attorney also receives "Highly Confidential" information. To the extent any in-house attorney designated under this Paragraph is only provided access to "Confidential" information of the opposing party and not "Highly Confidential" information of the opposing party, such attorney is not subject to the provisions of Paragraph 6 below;
(f) The authors and original recipients of the documents;
(g) Persons testifying in depositions or in court proceedings provided that (1) such documents or information were authored by, addressed to, or received by such persons or other persons employed by the same entity as such persons, or (2) such documents or information were produced by or obtained from such persons or their employer;
(h) Court reporters employed in this litigation, including their necessary stenographic, videographic and clerical personnel; and
(i) The Court, any juror or any other entity authorized by the Court or required by law.
5. In the event that a producing party elects to produce original documents or other material for inspection, no markings need be made on the documents or material by the producing party in advance of the inspection. During the inspection, such documents or material shall be considered confidential information to the extent and at the level designated by the producing party prior to the inspection. After selection by the inspecting party of specific documents or material for copying, the producing party shall make the appropriate copies, and the appropriate confidentiality designations shall be placed on the documents or materials before they are provided to the inspecting party.
6. Notwithstanding any provision of this Order, every person of the receiving party who receives and reviews information designated as "Highly Confidential" or "Confidential" under this Order is precluded from drafting, prosecuting, or supervising the drafting or prosecution of, or providing (verbally or in tangible form, in whole or in part) such Confidential or Highly Confidential information received under this Order to any person involved in drafting, prosecuting, or supervising the drafting or prosecution of, any patent applications with the United States Patent and Trademark Office ("USPTO") or any similar proceedings in any other country, involving any patent or patent application having claims or disclosures related to methods, procedures, or devices that concern transcatheter aortic valves. This preclusion is limited to proceedings involving patents and patent applications having an effective filing date before this action, during this action, or within four (4) years after the termination of this action. For purposes of clarity, "prosecution" does not include reexamination, reissue, interference proceedings, or equivalent proceedings (e.g., Post-Grant ...