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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 ...

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