The opinion of the court was delivered by: Honorable David R. Herndon Chief Judge, United States District Court
This Document Relates to: ALL CASES
ORDER #7 CASE MANAGEMENT (Order Concerning the Handling of Confidential Information)
A. Disclosure and discovery activity in this proceeding, including any appeal, may involve production of confidential, proprietary, and private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order ("Protective Order" or "Order").
B. This Protective Order shall govern all hard copy and electronic materials, the information contained therein, and all other information produced or disclosed during this proceeding, including all copies, excerpts, summaries, or compilations thereof, whether revealed in a document, deposition, other testimony, discovery response or otherwise, by any party, to this proceeding (the "Producing Party") to any other party, (the "Receiving Party"). This Protective Order is binding upon all parties at the time that this Protective Order is entered in the In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation (S.D. Ill., MDL No. 2100), including their respective corporate parents, subsidiaries, affiliates, and third party contractors, and their respective attorneys, principals, experts, consultants, representatives, directors, officers, employees, and others as set forth in this Protective Order.
C. Third Parties who so elect may avail themselves of, and agree to be bound by, the terms and conditions of this Protective Order and thereby become a Producing Party for purposes of this Protective Order.
D. The entry of this Protective Order does not preclude any party from seeking a further order of this Court pursuant to Fed. R. Civ. P. 26(c).
E. Nothing herein shall be construed to affect in any manner the admissibility at trial or in any other Court proceeding of any document, testimony, or other evidence.
F. Nothing in this Order shall prevent Plaintiffs' counsel from showing "Confidential Information" or "Highly Confidential" Information to the witness at the deposition of any former Bayer employee who currently works for a company that may otherwise preclude the receipt of "Confidential Information" or "Highly Confidential" Information by that witness had he or she not been formerly employed by Bayer. The witness, however, must treat any such documents according to the terms of this Protective Order. Use of documents in that fashion is governed by Sections III.A.6 and III.B.6, below.
This Protective Order does not confer blanket protections on all disclosures or responses to discovery and the protection it affords extends only to the specific information or items that are entitled to protection under the applicable legal principles for treatment as confidential. By designating any Discovery Material as Confidential Information, counsel producing such material is certifying to the Court that the material is entitled to confidentiality protection under Fed. R. Civ. P. 26 and the terms of this Order.
II. Designation and Redaction of Confidential Information and Highly Confidential Information
"Discovery Material" as used herein means any information, document, or tangible thing, response to discovery requests, deposition testimony or transcript, and any other similar materials, or portions thereof. To the extent that matter stored or recorded in the form of electronic or magnetic media (including information, files, databases, or programs stored on any digital or analog machine-readable device, computers, Internet sites, discs, networks, or tapes) ("Computerized Material") is produced by any party in such form, the Producing Party may designate such matters as confidential by a designation of "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" on the media. Whenever any party to whom Computerized Material designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL is produced reduces such material to hardcopy form, that party shall mark the hardcopy form with the corresponding "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" designation.
B. Discovery Material Protected under German Law. Any entity organized under the laws of Germany that becomes a party to this litigation may designate as CONFIDENTIAL those documents (including electronic or paper form) containing "personal data" within the meaning of the German Federal Data Protection Act, the confidentiality of which is protected under German law. "Personal data" consists of any and all data that concerns an identified person or a person who is identifiable with recourse to additional information available to the data processor (e.g., reference to an individual by his/her title or position within the company whose identity is specified in other available sources of information). In particular, this provision applies to the following documents:
1. any correspondence (electronic or paper form) that identifies or through recourse to other sources of information available to the data processor allows identification of its author(s)/sender(s) and/or its addressees/recipients, (e.g., all email correspondence, letters and faxes, including transmission reports);
2. any document, such as memoranda, notes, and presentations, if it identifies or allows identification of its author/sender and/or its addressee/recipient through recourse to other information available to the data processor;
3. minutes of internal or external meetings as far as they include information about which individual(s) did or did not attend the meeting;
4. personnel records and information; and
5. any document containing private medical information.
C. "Competitor" as used herein shall mean any company, other than the Producing Party, that is engaged in the design, manufacture or marketing of any oral contraceptive. For the purposes of this definition, "marketing" does not include distribution activities undertaken by pharmaceutical distribution companies or pharmacies.
D. "Confidential Information" as used herein means any information that the Producing Party believes in good faith constitutes, reflects, discloses, or contains information subject to protection under Fed. R. Civ. P. 26(c) or other applicable law, whether it is a document (electronic or otherwise), information contained in a document, information revealed during a deposition or testimony, information revealed in an interrogatory response, or information otherwise revealed. Any transcript of an in camera proceeding shall be treated as confidential pursuant to this Order. In designating discovery materials as "CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER" or "HIGHLY CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER," the Producing Party shall do so in good faith, consistent with the provisions of this Protective Order and rulings of the Court. Nothing contained herein shall be construed to allow for global designations of all material or documents produced as "Confidential" or "Highly Confidential." Documents not designated as "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or "HIGHLY CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER" are not Confidential Information as that term is defined herein.
E. "Highly Confidential Information" as used herein means Confidential Information which, if disclosed to a Competitor, could result in possible antitrust violations or substantial business harm by revealing proprietary licensing, marketing, design, development, research, manufacturing or business strategy information regarding products or medicines relating to this lawsuit. Nonexclusive examples of such Highly Confidential materials include, strategic plans, marketing plans, brand plans, documents setting forth marketing and sales tactics and strategies and documents revealing pricing or other contractual data. In designating discovery materials as Highly Confidential Information, the Producing Party shall do so in good faith consistent with the provisions of this Protective Order and rulings of the Court. Nothing herein shall be construed to allow for global designations of all documents as "Highly Confidential." The designation of any information as "Highly Confidential" shall have no impact on the manner in which the Plaintiffs may use that information during this litigation including at depositions of any witness, trial, appeal, in motions, etc, except as set forth in this Order As set forth below, the designation of discovery material as "Highly Confidential" does, however, restrict a co-defendant receiving party's counsel from sharing that discovery material with his or her client.
F. Specific documents and discovery responses produced by the Producing Party shall, if appropriate, be designated as "CONFIDENTIAL" OR "HIGHLY CONFIDENTIAL" by marking the pages of the document that contain Confidential Information in the margin or header/footer of the document in a manner that does not interfere with the document's legibility and does not obscure or cover any of the document's text or information, as follows: "CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER." or "HIGHLY CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER.
G. Information disclosed at a deposition taken in connection with this proceeding may be designated as Confidential Information or Highly Confidential by designating the portions of the transcript in a letter to be served on the court reporter and opposing counsel within thirty (30) calendar days of the Producing Party's receipt of the final transcript of a deposition. The court reporter will indicate the portions designated as confidential and segregate them as appropriate. Designations of transcripts will apply to audio, video, or other recordings of the testimony. The court reporter shall clearly mark any transcript released before the expiration of the thirty-day (30-day) period as "Highly Confidential -- Subject to Further Confidentiality Review" in the margin of the transcript so as not to obscure or cover any text. Such transcripts will be treated as Highly Confidential Information until the expiration of the thirty-day (30-day) period. If the Producing Party does not serve a designation letter within the thirty-day (30-day) period, then the entire transcript will be deemed not to contain Confidential Information or Highly Confidential Information and the "Highly Confidential -- Subject to Further Confidentiality Review" legend shall be removed.
H. Any party in this proceeding may designate as Confidential Information or Highly Confidential any document or information produced by, or testimony given by, any other person or entity that the party reasonably believes qualifies as such party's Confidential Information or Highly Confidential Information under this Protective Order. If any third party produced information that any party in good faith believes constitutes its Confidential Information or Highly Confidential Information, the party claiming confidentiality shall designate the information as such within thirty (30) calendar days of its receipt of such information. Any party receiving information from a third party shall treat such information as confidential during this thirty-day (30-day) period while all parties have an opportunity to review the information and determine whether it should be designated as confidential. Any party designating third party information as Confidential or Highly Confidential shall have the same rights as a Producing Party under this Order with respect to such information.
I. This Protective Order shall not be construed to protect from production or to permit the designation as "Confidential Information" or "Highly Confidential" of any document or other material that (a) the party has not made reasonable efforts to keep confidential, or (b) is at the time of production or disclosure, or subsequently becomes, through no wrongful act on the ...