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Dianne Winningham v. Biomet Orthopedics


May 21, 2012


The opinion of the court was delivered by: Honorable Jeffery S. White

A limited liability partnership forme



Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation would be warranted. 5

Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on all 7 disclosures or responses to discovery and that the protection it affords extends only to the limited 8 information or items that are entitled under the applicable legal principles to treatment as 9 confidential. The parties further acknowledge, as set forth in Section 12.3, below, that this 10 Stipulated Protective Order creates no entitlement to file confidential information under seal; Civil d in the State of Delaware Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and reflects the 12 standards that will be applied when a party seeks permission from the court to file material under seal.


2.1 Challenging Party: a Party or Non-Party that challenges the designation of 17 information or items under this Order. 18 19

2.2 "Confidential" Information or Items: information (regardless of how generated, 20 stored or maintained) or tangible things that qualify for protection under standards developed under 21 Federal Rule of Civil Procedure 26(c). 22 23

2.3 Counsel (without qualifier): Outside Counsel and House Counsel (as well as their 24 support staffs). 25 26

2.4 Designating Party: a Party or non-party that designates information or items that it 27 produces in disclosures or in responses to discovery as "Confidential". 28

2.5 Disclosure or Discovery Material: all items or information, regardless of the 2 medium or manner generated, stored, or maintained (including, among other things, testimony, 3 transcripts, or tangible things) that are produced or generated in disclosures or responses to 4 discovery in this matter. 5 6

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 7 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 8 consultant in this action. 9 10

2.7 House Counsel: attorneys who are employees of a Party to this action. House

d in the State of Delaware

counsel does not include Outside Counsel of Record or any other outside counsel. 12

2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 15 16

2.9 Outside Counsel of Record: attorneys who are not employees of a Party but who 17 are retained to represent or advise a Party in this action and have appeared on behalf of that party or 18 are affiliated with a law firm which has appeared on behalf of that party. 19 20

2.10 Party: any party to this action, including all of its officers, directors, employees, 21 consultants, retained experts, and Outside Counsel of Record (and their support staff). 22 23

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 14 Material in this action. 25 26

2.12 Professional Vendors: persons or entities that provide litigation support services 24 (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, 28 storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.

"Confidential." 3 4

Producing Party. 6 7

9 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 10 copies, excerpts, summaries, or compilations of Protected Material; and (3) testimony,

conversations, or presentations by Parties or Counsel to, or in, court or in other settings, that might 12 reveal Protected Material. However, the protections conferred by this Stipulation and Order do not

cover the following information: (a) any information that is in the public domain at the time of

disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a 15

2.13 Protected Material: any Disclosure or Discovery Material that is designated as

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a


The protections conferred by this Stipulation and Order cover not only Protected Material (as

Receiving Party as a result of publication not involving a violation of this Order; including becoming 16 part of the public record through trial or otherwise; and (b) any information known to the Receiving 17

Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source 18 who obtained the information lawfully and under no obligation of confidentiality to the Designating 19

Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 20 21

Even after final disposition of this litigation, the confidentiality obligations imposed by this

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 24 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 25 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 26 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 27 time limits for filing any motions or applications for extension of time pursuant to applicable law. 28


3 or non-party that designates information or items for protection under this Order must take care to 4 limit any such designation to specific material that qualifies under the appropriate standards. A 5

Designating Party must take care to designate for protection only those parts of material, documents, 6 items, or oral or written communications that qualify -- so that other portions of the material, 7 documents, items, or communications for which protection is not warranted are not swept 8 unjustifiably within the ambit of this Order. 9

10 to be clearly unjustified, or that have been made for an improper purpose (e.g., to unnecessarily

encumber or retard the case development process, or to impose unnecessary expenses and burdens 12 on other parties), expose the Designating Party to sanctions.

If it comes to a Designating Party's attention that information or items that it designated for

protection do not qualify for protection, that Designating Party must promptly notify all other parties 15 that it is withdrawing the mistaken designation. 16 17

(see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, 19


5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party

Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 20 designated before the material is disclosed or produced. 21

(a) for information in documentary form (e.g., paper or electronic documents,

23 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 24

Party affix the legend "CONFIDENTIAL" to each page that contains protected material. If only a 25 portion or portions of the material on a page qualifies for protection, the Producing Party also must 26 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). 27

28 need not designate them for protection until after the inspecting Party has indicated which material it

Designation in conformity with this Order requires:

A Party or Non-Party that makes original documents or materials available for inspection

would like copied and produced. During the inspection and before the designation, all of the 2 material made available for inspection shall be deemed "CONFIDENTIAL." After the inspecting 3

Party has identified the documents it wants copied and produced, the Producing Party must 4 determine which documents, or portions thereof, qualify for protection under this Order. Then, 5 before producing the specified documents, the Producing Party must affix the "CONFIDENTIAL" 6 legend to each page that contains Protected Material. If only a portion or portions of the material on 7 a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 8

(b) for testimony given in deposition or in other pretrial or trial proceedings,

10 that the Designating Party identify on the record, before the close of the deposition, hearing, or other

proceeding, all protected testimony. 12

any other tangible items, that the Producing Party affix in a prominent place on the exterior of the

container or containers in which the information or item is stored the legend "CONFIDENTIAL." If 15 only portions of the information or item warrant protection, the Producing Party, to the extent 16 practicable, shall identify the protected portions. 17 18

19 designate qualified information or items as "Confidential" does not, standing alone, waive the 20

Designating Party's right to secure protection under this Order for such material. Upon timely 21 correction of a designation, the Receiving Party must make reasonable efforts to assure that the 22 material is treated in accordance with the provisions of this Order. 23 24

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

26 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 27 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 28 or a later significant disruption or delay of the litigation, a Party does not waive its right to challenge

(e.g., by making appropriate markings in the margins). 9

(c) for information produced in some form other than documentary, and for

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to


a confidentiality designation by electing not to mount a challenge promptly after the original 2 designation is disclosed. 3 4

5 process by providing written notice of each designation it is challenging and describing the basis for 6 each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice 7 must recite that the challenge to confidentiality is being made in accordance with this specific 8 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith 9 and must begin the process by conferring directly (in voice to voice dialogue; other forms of 10 communication are not sufficient) within 14 days of the date of service of notice. In conferring, the

Challenging Party must explain the basis for its belief that the confidentiality designation was not 12 proper and must give the Designating Party an opportunity to review the designated material, to

reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the

chosen designation. A Challenging Party may proceed to the next stage of the challenge process 15 only if it has engaged in this meet and confer process in a timely manner. 16 17

18 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 19

Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) 20 within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the 21 meet and confer process will not resolve their dispute, whichever is earlier. Each such motion must 22 be accompanied by a competent declaration affirming that the movant has complied with the meet 23 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 24 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 25 shall automatically waive the confidentiality designation for each challenged designation. In 26 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 27 time if there is good cause for doing so, including a challenge to the designation of a deposition 28 transcript or any portions thereof. Any motion brought pursuant to this provision much be

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution

6.3 Judicial Intervention. If the parties cannot resolve a challenge without court

accompanied by a competent declaration affirming that the movant has complied with the meet and 2 confer requirement imposed by the preceding paragraph. 3

Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 5 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 6

The burden of persuasion in any such challenge proceeding shall be on the Designating Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 7 retain confidentiality as described above, all parties shall continue to afford the material in question 8 the level of protection to which it is entitled under the Producing Party's designation until the court 9 rules on the challenge. 10

defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 15 the categories of persons and under the conditions described in this Order. When the litigation has 16 been terminated, a Receiving Party must comply with the provisions of section 13, below (FINAL 17

Protected Material must be stored and maintained by a Receiving Party at a location and in a

19 secure manner that ensures that access is limited to the persons authorized under this Order. 20 21

7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise

22 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 23 disclose any information or item designated CONFIDENTIAL only to: 24

25 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 26 information for this litigation; 27

Receiving Party to whom disclosure is reasonably necessary for this litigation;


7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this case only for prosecuting,


(a) the Receiving Party's Outside Counsel of Record in this action, as well as

(b) the officers, directors, and employees (including House Counsel) of the

(c) Experts (as defined in this Order) of the Receiving Party to whom

2 disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be 3

Bound by Protective Order" (Exhibit A); 4

(d) the court and its personnel;

(e) court reporters, their staffs, professional jury or trial consultants, mock

6 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and 7 who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); 8

(f) during their depositions, witnesses in the action to whom disclosure is

9 reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" 10

(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 12 separately bound by the court reporter and may not be disclosed to anyone except as permitted under

this Stipulated Protective Order.

(g) the author or recipient of a document containing the information or a

15 custodian or other person who otherwise possessed or knew the information. 16 17


If a Party is served with a subpoena or a court order issued in other litigation that compels

20 disclosure of any information or items designated in this action as "CONFIDENTIAL," that Party 21 must: 22

(a) promptly notify in writing the Designating Party. Such notification must include a

23 copy of the subpoena or court order; 24

(b) promptly notify in writing the party who caused the subpoena or order to issue in

25 the other litigation that some or all the material covered by the subpoena or order is subject to this 26

Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 27

(c) cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected.

2 or court order shall not produce any information designated in this action as "CONFIDENTIAL" 3 before a determination by the court from which the subpoena or order issued, unless the Party has 4 obtained the Designating Party's permission. The Designating Party shall bear the burden and the 5 expense of seeking protection in that court of its confidential material -- and nothing in these 6 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 7 disobey a lawful directive from another court. 8 9

Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 15 additional protections. 16

Non-Party's confidential information in its possession, and the Party is subject to an agreement with 18 the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 19

(1) promptly notify in writing the Requesting Party and the Non-Party that

20 some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 21

Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 23 description of the information requested; and 24

Party. 26

27 days of receiving the notice and accompanying information, the Receiving Party may produce the 28

Non-Party's confidential information responsive to the discovery request. If the Non-Party timely

If the Designating Party timely seeks a protective order, the Party served with the subpoena


(a) The terms of this Order are applicable to information produced by a Non- Party in this action and designated as "CONFIDENTIAL." Such information produced by Non- Parties in connection with this litigation is protected by the remedies and relief provided by this

(b) In the event that a Party is required, by a valid discovery request, to produce a

(2) promptly provide the Non-Party with a copy of the Stipulated

(3) make the information requested available for inspection by the Non-

(c) If the Non-Party fails to object or seek a protective order from this court within 14

seeks a protective order, the Receiving Party shall not produce any information in its possession or 2 control that is subject to the confidentiality agreement with the Non-Party before a determination by 3 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 4 seeking protection in this court of its Protected Material. 5 6


If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 9 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 10 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and 12

(d) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound"

that is attached hereto as Exhibit A.


When a Producing Party gives notice to Receiving Parties that certain inadvertently produced

18 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 19 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 20 modify whatever procedure may be established in an e-discovery order that provides for production 21 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 22 parties reach an agreement on the effect of disclosure of a communication or information covered by 23 the attorney-client privilege or work product protection, the parties may incorporate their agreement 24 in the stipulated protective order submitted to the court. 25 26


12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its

28 modification by the Court in the future.

Party waives any right it otherwise would have to object to disclosing or producing any information 3 or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives 4 any right to object on any ground to use in evidence of any of the material covered by this Protective 5

Order. 6 7

8 court order secured after appropriate notice to all interested persons, a Party may not file in the 9 public record in this action any Protected Material. A Party that seeks to file under seal any 10

Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific 12

will issue only upon a request establishing that the Protected Material at issue is privileged,

protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's 15 request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) and General Order 16

62 is denied by the court, then the Receiving Party may file the information in the public record 17 pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 18 19

Within 60 days after the final disposition of this action, as defined in paragraph 4, each

Receiving Party must return all Protected Material to the Producing Party or destroy such material. 22

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no

12.3 Filing Protected Material. Without written permission from the Designating Party or a

Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected

Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a sealing order


As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, 23 summaries and any other format reproducing or capturing any of the Protected Material. Whether 24 the Protected Material is returned or destroyed, the Receiving Party must submit a written 25 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 26 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 27 that was returned or destroyed, and (2) affirms that the Receiving party has not retained any copies, 28 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected

Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 2 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 3 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 4 and expert work product, even if such materials contain Protected Material. Any such archival 5 copies that contain or constitute Protected Material remain subject to this Protective Order as set 6 forth in Section 4 (DURATION), above. 7 8


DATED: May 18, 2012 /s/ Kenneth M. Seeger 10 Kenneth M. Seeger Brian J. Devine Seeger Salvas LLP Attorneys for Plaintiff DATED: May 18, 2012 /s/ Steven J. Boranian* Steven J. Boranian Reed Smith LLP Attorneys for Defendants

*I hereby attest that I have on file all holograph signatures for any signatures indicated by a 19

"conformed" signature (/S/) within this efiled document.



________________________ [print or type full address], declare under penalty of perjury that I 5 have read in its entirety and understand the Stipulated Protective Order that was issued by the United 6

States District Court for the Northern District of California on [date] in the case of Winningham v. 7



I, _________________________________ [print or type full name]. of


Biomet Orthopedics, LLC, et al., Case No. 12-CV-0503-JSW. I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 9 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 10 solemnly promise that I will not disclose in any manner and information or item that is subject to this

Stipulated Protective Order to any person or entity except in strict compliance with the provisions of 12 this Order.

I further agree to submit to the jurisdiction of the United States District Court for the

Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 15

I hereby appoint _________________________ [print or type full name] of _____________

_____________________________________ [print or type full address and telephone number] as 18 my California agent for service of process in connection with this action or any proceedings related 19 to enforcement of this Stipulated Protective Order. 20

City and State where sworn and signed: ____________________________ 22

[printed name]

Order, even if such enforcement proceedings occur after termination of this action. 16

Date: __________________________ 21

Printed name: ________________________________ 23

Signature :_____________________________________



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