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Beller v. Coloplast A/S

United States District Court, D. Nebraska

March 27, 2017

GARY L. BELLER and MARY K. BELLER, Husband and Wife, Plaintiffs,
v.
COLOPLAST A/S, COLOPLAST CORPORATION, and COLOPLAST MANUFACTURING, U.S. LLC, Defendants.

          STIPULATED PROTECTIVE ORDER

          F.A. Gossett, III United States Magistrate Judge

         It appearing that certain information, documents, and things of the parties subject to discovery in this action may contain, embody or reflect a trade secret or non-public, confidential, proprietary, or sensitive research, know-how, or development or technical, personal, business, financial or commercial information, or other information otherwise covered by a legitimate right or interest of privacy, within the meaning of F.R.C.P. 26(c), the laws of the United States, or other applicable laws (hereinafter individually and collectively referred to as "Confidential Information"), and in the interest of expediting discovery and permitting the same to proceed without delay occasioned by possible disputes regarding claims of Confidential Information, and to preserve the parties' interests in their Confidential Information without unduly encroaching upon the public's right to be informed of judicial proceedings, and recognizing that a party seeking to protect information filed under seal with the Court must narrow the request and show good cause for restricting access to that part of the record, and the parties representing that their counsel are familiar with the laws relating to the protection of such Confidential Information, and acknowledging the importance of access by the opposing party to information important to the decision-making of the parties in the prosecution or defense of the litigation, Plaintiffs Gary L. Beller and Mary K. Beller (together “Plaintiffs”) and Defendants Coloplast Corp. and Coloplast Manufacturing, U.S. LLC (together “Coloplast” or “Defendants”) (each a “Party” and collectively “the Parties”) hereby agree that the following Stipulated Protective Order (the "Order") be entered pursuant to F.R.C.P. 26(c) to provide access by the Parties to such Confidential Information, subject to certain protective provisions hereinafter set forth.

         IT IS HEREBY STIPULATED BY THE PARTIES, AND FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED THAT:

         1. This Order shall apply to all Confidential Information that is the subject of discovery or testimony in this action. Discovery materials and testimony as to which a disclosing Party or non-party has an interest and as to which confidentiality is asserted by such Party's counsel after review of the information and on a good faith belief that it is confidential or otherwise subject to protection and not (1) to impose any unnecessary burden or delay on an opposing Party, or (2) for tactical or other advantage in litigation, upon designation of the Confidential Information as CONFIDENTIAL shall be treated pursuant to the provisions of this Order. For purposes of this Order, disclosing non-parties shall have the same rights and obligations as a disclosing Party.

         (a) Discovery materials produced pursuant to F.R.C.P. 34.

         Documents and other discovery materials produced pursuant to F.R.C.P. 34 shall be designated as Confidential Information prior to disclosure by labeling such documents and materials in a visible manner with a CONFIDENTIAL legend stamped or affixed thereto, or by a manner mutually agreeable to the Parties if the materials cannot be readily so labeled. If a disclosing Party or non-party thereafter determines that it inadvertently failed to properly designate or label Confidential Information, it may do so by giving prompt and timely notice to the receiving Party, who shall thereafter treat the materials pursuant to the provisions of this Order.

         (b) Oral or written deposition taken pursuant to F.R.C.P. 30 or 31.

         Any disclosing Party or non-party (including the Party or non-party being deposed or any Party or non-party regarding whom the testimony concerns) may designate testimony on oral or written deposition taken pursuant to F.R.C.P. 30 or 31 as CONFIDENTIAL under the terms of this Order by:

(i) so stating on the record during the deposition, including objecting to testimony by stating that such testimony is CONFIDENTIAL and should be so designated, or
(ii) by notifying the other Parties in writing of the portions of such testimony to be so designated within seven (7) calendar days of receipt of the draft transcript by the deponent or the deponent's counsel, whichever is earlier. Testimony during the deposition shall be treated as CONFIDENTIAL unless another designation is made on the record or until such written notification is received, or if no written notification is provided, until the expiration of the seven (7) calendar day period.

         With regard to designations made during the deposition, the designating Party shall have the right to exclude from the deposition all persons not entitled under this Order to view or receive such Confidential Information before the taking of such testimony. If a disclosing Party or non-party promptly and timely determines that it inadvertently failed to properly designate confidential testimony, it may do so by giving notice to all Parties, who shall thereafter treat the materials pursuant to the provisions of this Order. Any transcript portion that contains testimony so designated shall be labeled in a visible manner with the CONFIDENTIAL legend, and if requested by the designating Party, shall be bound in a separate, sealed volume by the court reporter.

         (c) Responses to interrogatories under F.R.C.P. 33.

         Responses to interrogatories under F.R.C.P. 33 shall be designated as Confidential Information prior to disclosure by labeling such documents and materials in a visible manner with a CONFIDENTIAL legend stamped or affixed thereto, or by a manner mutually agreeable to the Parties if the materials cannot be readily so labeled. If a disclosing Party or non-party thereafter determines that it inadvertently failed to properly designate or label an interrogatory response under F.R.C.P. 33 CONFIDENTIAL, it may do so by giving prompt and timely notice to all Parties, who shall thereafter treat the materials pursuant to the provisions of this Order.

         2. This Order does not affect or alter a disclosing Party's rights to refuse to disclose information properly subject to the attorney-client privilege or the attorney work product doctrine. If a Party, through inadvertence, produces or provides discovery that it believes is subject to a claim of attorney-client privilege, work product immunity, or is otherwise protected from disclosure, the producing Party may give prompt and timely written notice to the receiving Party that the document is subject to a claim of attorney-client privilege, work product immunity, or other protection from disclosure, and request that the discovery be returned to the producing Party. The receiving Party shall promptly return to the producing Party such discovery. Return of the document by the receiving Party shall not constitute an admission or concession, or permit any inference, that the returned document or thing is, in fact, properly subject to a claim of attorney-client privilege, work product immunity, or other protection from disclosure, nor shall it foreclose any Party from moving the Court for an order that such document or thing has been improperly designated or should be discoverable and/or usable in this action for reasons other than a waiver caused by the inadvertent production.

         3. Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify - so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited.

         4. A disclosing Party may produce materials in redacted form and shall make the notation "REDACTED", or other similar notation, on each redacted portion of the document. Where a Party receiving redacted materials has good cause to believe that the redacted information is subject to disclosure, the Parties shall attempt to resolve any dispute without intervention by the Court. Should the Parties be unable to resolve their dispute regarding redacted information, the Party ...


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