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Synthes USA LLC v. Davis

United States District Court, D. South Carolina, Florence Division

January 29, 2018

SYNTHES USA, LLC; DEPUY SPINE, LLC; and DEPUY SYNTHES SALES, INC., Plaintiffs,
v.
STEPHEN N. DAVIS, JR.; JEFFREY A. DOMICO; and K2M, INC., Defendants.

          CONSENT CONFIDENTIALITY ORDER

          DONALD C. COGGINS, JR., UNITED STATES DISTRICT JUDGE.

         Whereas, the parties to this Consent Confidentiality Order (“parties”), have stipulated that certain discovery material is and should be treated as confidential, and have agreed to the terms of this order; accordingly, it is this 29th day of January, 2018, ORDERED:

         1. Scope.

         All documents produced in the course of discovery, all responses to discovery requests and all deposition testimony and deposition exhibits and any other materials which may be subject to discovery (hereinafter collectively “documents”) shall be subject to this Order concerning confidential information as set forth below.

         2. Form and Timing of Designation.

         Confidential documents shall be so designated by placing or affixing the word “CONFIDENTIAL” or the words “HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY” (hereinafter “confidential”) on the document in a manner which will not interfere with the legibility of the document and which will permit complete removal of the Confidential designation. Documents shall be designated CONFIDENTIAL or HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY prior to, or contemporaneously with, the production or disclosure of the documents. Inadvertent or unintentional production of documents without prior designation as confidential shall not be deemed a waiver, in whole or in part, of the right to designate documents as confidential as otherwise allowed by this Order.

         3. Documents Which May be Designated Confidential.

         Any party may designate confidential documents as CONFIDENTIAL but only after review of the documents by an attorney[1] who has, in good faith, determined that the documents contain information protected from disclosure by statute, sensitive personal information, trade secrets, or confidential research, development, or commercial information. Because this litigation involves two opposing competitors, the parties jointly agree that any party may designate confidential documents as HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY but only after review of the documents by an attorney who has, in good faith, determined that the documents contain highly sensitive information, which, if placed in the hands of a person or entity other than the producing party, may place the producing party at a competitive disadvantage. The certification shall be made concurrently with the disclosure of the documents, using the form attached hereto at Attachment A which shall be executed subject to the standards of Rule 11 of the Federal Rules of Civil Procedure. Information or documents which are available in the public sector may not be designated as confidential.

         4. Depositions.

         Portions of depositions shall be deemed confidential only if designated as such when the deposition is taken or within seven business days after receipt of the transcript. Such designation shall be specific as to the portions to be protected.

         5. Protection of Confidential Material.

         a. General Protections.

         Documents designated CONFIDENTIAL or HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY under this Order shall not be used or disclosed by the parties or counsel for the parties or any other persons identified below (¶ 5.b.) for any purposes whatsoever other than preparing for and conducting the litigation in which the documents were disclosed (including any appeal of that litigation). The parties shall not disclose documents designated as confidential to putative class members not named as plaintiffs in putative class litigation unless and until one or more classes have been certified.

         b. Limited Third Party Disclosures.

         The parties and counsel for the parties shall not disclose or permit the disclosure of any documents designated CONFIDENTIAL under the terms of this Order to any other person or entity except as set forth in subparagraph b.1. below, and shall not disclose or permit the disclosure of any documents designated HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY under the terms of this Order to any other person or entity except as set forth in subparagraph b.2. below, and then only after the person to whom disclosure is to be made has executed an acknowledgment (in the form set forth at Attachment B hereto), that he or she has read and understands the terms of this Order and is bound by it.

         b.1. Subject to these requirements, and unless otherwise agreed by the parties, the following categories of persons may be allowed to review documents which have been designated CONFIDENTIAL pursuant to this Order:

(1) outside and in-house counsel and employees of outside and in-house counsel for the parties who have responsibility for the preparation and trial of the lawsuit;
(2) parties and employees of a party to this Order but only to the extent counsel shall certify that the specifically named individual party or employee's assistance is necessary to the conduct of the litigation in which the information is disclosed[2];
(3) court reporters engaged for depositions and those persons, if any, specifically engaged for the limited purpose of processing or making copies of documents;
(4) consultants, investigators, or experts (hereinafter referred to collectively as “experts”) employed by the parties or counsel for the parties to assist in the preparation and trial of the lawsuit;
(5) any person indicated on the face of the document or thing as an originator, author or recipient of a copy thereof; and
(6) other persons only upon consent of the producing party or upon order of the court and on such conditions as are agreed to or ordered.

         b.2. Subject to the requirements in this Section, and unless otherwise agreed by the parties, the following categories of persons may be allowed to review documents which have been designated HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY pursuant to this Order:

(1) outside counsel and employees of outside counsel for the parties who have responsibility for the preparation and ...

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