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Grunig v. Johnson & Johnson

United States District Court, D. Idaho

November 28, 2018

RONALD GRUNIG and SHANNON GRUNIG, husband and wife, Plaintiffs,
v.
JOHNSON & JOHNSON, a New Jersey Corporation, and ETHICON, INC., a New Jersey corporation, Defendants.

          CONFIDENTIALITY AND PROTECTIVE ORDER

          B. LYNN WINMILL CHIEF JUDGE

         Before the Court is the parties' Stipulation for Entry of Confidentiality and Protective Order (“Protective Order”). After careful consideration, it is hereby ORDERED as follows:

         1. Definitions.

         “Action” or “Proceeding” means the above-captioned proceeding.

“Competitor” means any manufacturer of, or any entity involved in the sale of hernia mesh or pelvic mesh, and any person who, upon reasonable and good faith inquiry, could be determined to be employed by, to be a consultant doing research for, or otherwise to be retained by any manufacturer of, or any entity involved in the sale of, hernia mesh or pelvic mesh.
“Consultant” means an expert, consultant, or case-specific medical professional whom counsel has retained, or is considering for retention, to assist in preparing for the trial of the Action, whether or not designated as a testifying expert.
“Designating Party” means the Party or non-party that designates Documents, Testimony, or Information as CONFIDENTIAL or HIGHLY CONFIDENTIAL.
“Document” or “Documents” has the meaning set out in Federal Rule of Civil Procedure 34(a) and includes electronically stored information.
“Information” includes the content of Documents or Testimony, as well as any matter derived therefrom or based thereon.
“Party/Parties” means the plaintiffs, defendants, and any other parties to this Action and, as applicable, the parties' respective corporate parents, subsidiaries, affiliates, successors, attorneys, principals, experts, consultants, representatives, directors, officers, and employees. For purposes of this Protective Order, the terms “Party” and “Parties” shall also include any and all third parties who elect to avail themselves of, and agree to be bound by, the terms and conditions of this Protective Order by signing the Agreement attached hereto as Exhibit A.
“Producing Party” means any Party or non-party who discloses Documents, Testimony, or Information in this Proceeding.
“Qualified Person” means any person or entity authorized to receive or see CONFIDENTIAL OR HIGHLY CONFIDENTIAL Material under the terms of this Order, as described in Paragraph 3 below.
“Receiving Party” means any Party to whom Documents, Testimony, or Information are disclosed in this Proceeding.
“Testimony” means all depositions, declarations or affidavits, or other pre-trial statements such as interrogatory answers and responses to requests for admission, whether or not given under oath, used in this Proceeding.

         2. Introduction, Scope, and Applicability.

         This Protective Order shall govern all hard copy and electronic Documents and Information disclosed in this proceeding that are identified by the Designating Party as CONFIDENTIAL or HIGHLY CONFIDENTIAL under this Order. This Protective Order is applicable to all Parties (as defined in Paragraph 1), and all other signatories to the Agreement attached hereto as Exhibit A, the terms of which are deemed to be incorporated into this Order. It is expressly ordered that this Protective Order will not be used, in any manner or form, direct or indirect, as evidence in any trial or any hearing, or referred to in any trial or any hearing on the merits of this case, save and except a hearing which involves issues related to the enforcement of any provision of this Protective Order. This provision is an essential part of this Protective Order and is not severable from any remaining paragraph or provision thereof. Nothing herein shall be construed as an admission or concession by a Designating Party that any designated CONFIDENTIAL or HIGHLY CONFIDENTIAL Information constitutes material, relevant, or admissible evidence in this proceeding.

         3. Confidential Information.

         Any Party may designate as CONFIDENTIAL any Documents or Information the Designating Party believes in good faith constitutes or discloses Information that qualifies for protection under Federal Rules of Civil Procedure 26(c)(1)(G) or other applicable laws or regulations. CONFIDENTIAL Documents or Information include Documents or Information that contain trade secret information as defined by Section 1(4) of the Uniform Trade Secrets Act, or other confidential research, development, proprietary or commercial information, and materials that are deemed confidential under Federal Drug Administration (“FDA”) regulations and Health Insurance Portability and Accountability Act (“HIPAA”) statutes and/or other similar state or local laws or regulations. Nonetheless, 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 information or items that are entitled to confidential treatment under the applicable legal principles.

         CONFIDENTIAL Documents or Information may be further designated as HIGHLY CONFIDENTIAL if the Designating Party believes in good faith that, if disclosed, the Documents or Information would cause substantial economic harm to the competitive position of the Designating Party or Producing Party because it is highly confidential research and development material on a new product that has not been approved or cleared by the FDA or similar regulatory body or reflects a Party's price competitiveness in the market or marketing business strategies of a Party concerning a current or new product. The plaintiffs will inform the Producing Party and Designating Party of its intent to disclose HIGHLY CONFIDENTIAL information to any individual who is currently, or who at any time during the pendency of this Proceeding becomes, a Consultant to a Competitor of the Producing Party or Designating Party in the pelvic mesh or hernia mesh business, or is a consultant to any entity actively investigating entering such businesses, and plaintiffs will follow the procedures for disclosure of such materials in accordance with the terms set forth in this Protective Order. “Qualified Persons” means:

a. For HIGHLY CONFIDENTIAL Documents or Information:
i. retained counsel for the Parties in this litigation and their respective staff;
ii. actual or potential independent experts or consultants (and their administrative or clerical staff) engaged in connection with this litigation (which shall not include the current employees, officers, members, or agents of parties or affiliates of parties);
iii. litigation vendors, court reporters, and other litigation support personnel;
iv. this Court and its staff and any other tribunal or dispute resolution officer duly appointed or assigned in ...

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