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Petra Pena, An Individual v. Bristol-Myers Squibb Company

April 22, 2013

PETRA PENA, AN INDIVIDUAL;
PLAINTIFF,
v.
BRISTOL-MYERS SQUIBB COMPANY, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. Stephen V. Wilson

STIPULATED PROTECTIVE ORDER Judge: Hon. Stephen V. Wilson Trial Date: October 1, 2013

Plaintiff Petra Pena ("Plaintiff") and Defendant Bristol-Myers Squibb Company ("BMS") (each a "Party" and hereinafter collectively, the "Parties") respectfully request that the Court enter the following Stipulated Protective Order ("Protective Order" or "Order"):

1. The Parties stipulate that this Protective Order will govern production of electronically stored information ("ESI") and hard copy documents (collectively "Document" or "Documents" as defined in the Protective Order) in the pending action, Petra Pena v. Bristol-Myers Squibb Company, et al., Case No. 2:13-cv-01102-SVW-SP, including any appeal therefrom (the "Litigation").

2. As used in this Order, the terms "Confidential Discovery Material" and "Confidential Personal Information" mean Documents, materials, or portions thereof, and information contained therein, produced in the course of discovery during the Litigation that are designated "Confidential"pursuant to the terms of this Protective Order by any Party, person or original source of the document (the "Producing Party") to any other Party or person (the "Receiving Party") subject to this Protective Order.

3. "Document" as used herein shall be interpreted broadly to include hard copy or electronically stored information ("ESI") including but not limited to: discovery materials, writings, drawings, graphs, charts, photographs, sound recordings, images, audio-visual materials and other data or data compilations - stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. This Protective Order is applicable to all forms of discovery, including but not limited to deposition testimony, deposition exhibits, answers to interrogatories, Documents produced in response to requests for production, responses to requests for admission, medical records, and any Documents recorded on computer disks or removable storage media.

4. This Protective Order is binding upon the Parties, including their respective attorneys, agents, experts, consultants, representatives, officers and employees and others as set forth in this Order. This Order is also binding on any individual or entity who obtains any Document produced or disclosed in the Litigation pursuant to this Protective Order.

5. The parties agree that Confidential Discovery Material and/or Confidential Personal Information will be used only for the Litigation. Other than described herein, Confidential Discovery Material and/or Confidential Personal Information will not be used for any other purpose, including other litigation, and shall not be disclosed to any person or governmental agency or otherwise made public except in compliance with the terms of this Order, or by determination of the Court.

6. This Order is HIPAA-Compliant pursuant to 45 C.F.R. § 164.512 (e)(1)(v). The parties agree that Confidential Discovery Material and/or Confidential Personal Information will be used only for the Litigation, including Documents that contain Protected Health Information (PHI) and individually identifiable health information that is protected from unauthorized disclosure by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), codified in 45 C.F.R. §§ 160, 164.

7. Any pleadings, discovery responses, statements, declarations, drafts, copies, photographs, depictions, excerpts, notes concerning or other information generated from an inspection of a Document that quotes, incorporates, reflects or otherwise includes, in whole or in part, Confidential Discovery Material and/or Confidential Personal Information shall be treated in the same manner as the Document bearing the designation.

8. Any person subject to this Protective Order who receives any Confidential Discovery Material and/or Confidential Personal Information in the course of discovery in the Litigation shall not disclose such Confidential Discovery Material and/or Confidential Personal Information to anyone else except as expressly permitted by this Protective Order.

9. The Producing Party may designate as "Confidential" any Document that it in good faith believes constitutes information that is used by the Producing Party in, or pertaining to, its business that would not normally be disclosed to third parties or, if disclosed, would require third parties to maintain the information in confidence. Information subject to a confidentiality designation may include, but is not limited to: medical records, employment records, post-marketing surveillance records which contain patient identifiers, records identifying research subjects, financial or business plans or projections, acquisition offers or expressions of interest, proposed strategic transactions or other business combinations, proprietary technical information and specifications, business and marketing information, plans, and strategies, studies or analyses by internal or outside experts, financial information or results, tax data, assets and liabilities, competitive analyses, personnel records and information, manufacturing practices, trade secrets, formulation or other proprietary research, development, or any other commercial, business or personally sensitive or proprietary information.

10. The Producing Party may designate a Document containing Confidential Discovery Material by stamping or otherwise clearly marking the Document "Confidential" in such a manner that will not interfere with legibility or audibility.

11. To the extent that Confidential Discovery Material stored or recorded in the form of electronic or magnetic media (including, but not limited to: 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 the Electronic Discovery Material as "Confidential" by cover letter referring generally to the Electronic Discovery Material, or by designation in the accompanying load file, or by stamping or marking the production media containing the Documents as "Confidential." Whenever a Party or other person receives Electronic Discovery Material subject to this Order and reduces the Electronic Discovery Material to hardcopy or image form, that Party shall mark the hardcopy or image form with the appropriate confidentiality designation.

12. All depositions or portions of depositions taken in this action that contain confidential information may be designated "Confidential" and thereby obtain the protections accorded under this Protective Order. Confidentiality designations for depositions shall be made either on the record or by written notice to the other party within 30 days of receipt of the final transcript. Unless otherwise agreed, depositions shall be treated as "Confidential" during the 30-day period following receipt of the transcript. The deposition of any witness (or any portion of such deposition) that encompasses Confidential Discovery Material or Confidential Personal Information shall be taken only in the presence of persons who have agreed to be bound by this Order and who have executed the attached Acknowledgement of Stipulated Protective Order.

13. Documents produced by a third party shall be treated as Confidential Discovery Material for thirty (30) calendar days after production. During this period any party may designate such Documents as Confidential pursuant to the terms of this Order. Any Party designating third party information as Confidential shall have the same rights as a Producing Party under this Order with respect to such information.

14. Confidential information includes information that would identify patients and persons associated with reporting adverse events involving human drugs (excluding Plaintiff), and research subjects. See 21 C.F.R. §§ 20.63, 20.113, 45 C.F.R. §§ 160, 164. BMS shall not be compelled to disclose this identifying information and may redact this identifying information from discovery material before production; provided, ...


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