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Troy M. Lindell, On Behalf of Himself and All Others Similarly Situated v. Synthes Usa

February 1, 2013


The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

STIPULATED PROTECTIVE ORDER (Assigned to Hon. Barbara A. McAuliffe Courtroom 8)

Pursuant to Local Rule 141.1 of the Civil Local Rules of Practice for the United States District Court, Eastern District of California, the parties hereby stipulate to the following:


Disclosure and discovery activity in this action are likely to involve production of confidential, trade secret, proprietary, or private information of plaintiff Troy Lindell ("Plaintiff") 6 and defendants Synthes USA, Synthes USA Sales LLC, Synthes Spine Company, LP, and their 7 parents, subsidiaries, affiliates, succors and assigns (collectively "Synthes"), for which special 8 protection from public disclosure and from use for any purpose other than prosecuting this litigation 9 may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Local Rule 141 sets forth the procedures that must be followed and the 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 information or items under this Order.

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things, documents, portions of documents, answers to interrogatories, responses to requests for admissions, trial testimony, deposition testimony, and transcripts of trial testimony and depositions, including data, summaries, and compilations derived therefrom that contain any of the following categories of information: (1) Synthes' proprietary and trade secret information, including, but not limited to (i) customer preferences and customer usage history; (ii) prices, renewal dates and other detailed terms of customer and supplier contracts and proposals; (iii) pricing policies, methods of delivering services and products, and marketing and sales strategies; (iv) forecasts, budgets and other non-public financial information; (v) product 2 performance information, product technical information, product know-how, product technology and 3 product development strategies, inventions (whether or not reduced to practice), discoveries, 4 methodologies, algorithms, formulas, protocols, reports, data, results, observations, computer 5 programs, patent applications, strategic plans, hypotheses, research directions, developments, 6 improvements, drawings, designs, specifications, opinions of legal counsel, and draft or final 7 regulatory filings; (vi) sales and commission policies; and (vii) expansion plans, management 8 policies and other business strategies and policies; and (2) any sensitive personal information of Plaintiff or any putative class member that may allow for the identification or misuse of Plaintiff's or any putative class member's personal information, including, but not limited to social security numbers, payroll information and records, and personnel files.

Protection of information in category (1) above is required because this information is not available to the general public, Synthes is in a highly competitive industry, and disclosure of such information may place Synthes at a competitive disadvantage and/or subject Synthes to irreparable harm. Protection of information in category (2) above is required to protect the financial security of Plaintiff and putative class members and because the disclosure of such information may impair Plaintiff's and putative class members' privacy rights.

The parties agree that the Confidential Information or Items should be protected by a Court order rather than by a private agreement because the entry of a protective order would authorize the exercise of the Court's contempt power over any potential violations of the protective order. Further, a private agreement between the parties would not serve to fully protect the confidential nature of the information from unwarranted disclosure, would not be as strong of a deterrent against such disclosure, and would not provide sufficient remedies in the event of disclosure.

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).

2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY."

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

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 7 consultant in this action, (2) is not a past or current employee of a Party or of a Party's competitor, 8 and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party's 9 competitor.

2.7 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information or Items: extremely sensitive "Confidential Information or Items," disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.

2.8 House Counsel: attorneys who are employees of a Party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel.

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

2.10 Outside Counsel of Record: attorneys who are not employees of a Party to this action but are retained to represent or advise a party to this action.

2.11 Party: any party to this action, including all of its parents, subsidiaries, affiliates, officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).

2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action.

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

2.14 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL," or as "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 3

2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 5


The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 8 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 9 conversations, or presentations by Parties or their Counsel that might 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 Receiving Party as a result of publication not involving a violation of this Order, including becoming part of the public record through trial or otherwise; and (b) any information obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.


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 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this ...

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