MILLIGAN v. Zimmer Holdings, Inc. et al
Filing
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PROTECTIVE ORDER re 19 Proposed Order. Signed by Magistrate Judge William G. Cobb on 2/4/13. (Copies have been distributed pursuant to the NEF - JC)
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Vaughn A. Crawford
Nevada Bar No. 7665
Jay J. Schuttert
Nevada Bar No. 8656
Justin S. Hepworth
Nevada Bar No. 10080
SNELL & WILMER L.L.P.
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
Telephone: (702)784-5200
Facsimile: (702)784-5252
Email: vcrawford@swlaw.com
Email: jschuttert@swlaw.com
Email: jcools@swlaw.com
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Attorneys for Defendants
Zimmer Holdings, Inc., Zimmer, Inc., and
Zimmer Orthopaedic Surgical Products, Inc.
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UNITED STATES DISTRICT COURT
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Snell & Wilmer
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
DISTRICT OF NEVADA
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JAMES MILLIGAN,
Case No.: 3:12-cv-00518-LRH-WGC
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Plaintiff,
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PROTECTIVE ORDER
v.
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ZIMMER HOLDINGS, INC., a foreign
corporation; ZIMMER, INC., a foreign
corporation; ZIMMER ORTHOPAEDIC
SURGICAL PRODUCTS, INC., a foreign
corporation; ABC CORPORATIONS I-X;
and JOHN DOES I-X, inclusive,
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Defendants.
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The parties have stipulated to the entry of this Protective Order in regard to certain
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discovery material to be made available by defendants Zimmer Holdings, Inc., Zimmer, Inc., and
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Zimmer Orthopaedic Surgical Products, Inc. (collectively, “Defendants”), to the plaintiff, James
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Milligan (“Plaintiff”). This discovery material could potentially include the following trade
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secrets and confidential, proprietary, and non-public documents and information, the public
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disclosure of that could be detrimental to the interests of Zimmer and/or related corporate entities;
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documents which may contain information that is personal and confidential to third parties,
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16501005.2
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including individuals; and documents and information that are subject to a claim of privilege or
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immunity from discovery (including, but not limited to, attorney-client privilege, work product
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immunity, and immunities created by federal or state statute or regulation). The parties agree that
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the above-described documents and information, including electronically stored information,
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should be given the protection of an order of this Court to prevent irreparable harm through
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disclosure to persons other than those persons involved in the prosecution or defense of this
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litigation.
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THEREFORE, FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED,
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ADJUDGED, and DECREED that the following Protective Order shall govern discovery in the
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above-captioned matter, as follows:
Snell & Wilmer
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
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1.
The following definition shall apply to this Order:
A “stamped confidential
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document” means any document, including any document produced electronically, that bears the
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legend (or which shall otherwise have had the legend recorded upon it or upon the medium in
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which it is produced, in a way that brings its attention to a reasonable examiner)
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“CONFIDENTIAL” or “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” to signify
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that it contains information subject to protection under Federal Rule of Civil Procedure
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26(c)(1)(G), or federal or state statute or regulation.
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“document” means all written, recorded, electronically stored, or graphic material produced or
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created by a party or any other person, whether produced pursuant to the Federal Rules of Civil
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Procedure, subpoena, by agreement, or otherwise. Interrogatory answers, responses to requests
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for admission, deposition transcripts and exhibits, pleadings, motions, affidavits, and briefs that
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quote, summarize, or contain materials entitled to protection may be accorded status as stamped
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confidential documents, but, to the extent feasible, shall be prepared in such a manner that
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stamped confidential documents are bound separately from those not entitled to protection.
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2.
For purposes of this Order, the term
Stamped confidential documents and their contents, as well as copies, summaries,
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notes, memoranda, and computer databases relating thereto, shall be and remain confidential, and
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shall not be disclosed in any fashion, nor be used for any purpose other than the analysis and
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preparation for trial of this action, except with the prior written consent of the party or other
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person originally designating a document as a stamped confidential document, or as hereinafter
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provided under this Order. Stamped confidential documents produced in electronic form shall not
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be disclosed to anyone other than the person receiving the document.
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3.
Notwithstanding paragraph 2, stamped confidential documents may be disclosed to
litigation; to the partners, associates, secretaries, paralegal assistants, and employees of such an
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attorney to the extent reasonably necessary to render professional services in the litigation; to
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persons with prior knowledge of the documents or the confidential information contained therein,
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and their agents; and to court officials involved in this litigation (including court reporters,
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Snell & Wilmer
counsel of record for Plaintiff to this action who is actively engaged in the conduct of this
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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
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persons operating video recording equipment at depositions, and any special master appointed by
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the Court).
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disclosed:
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Subject to the provisions of subparagraph 3(c), such documents may also be
a)
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to any person designated by the Court in the interest of justice, upon such
terms as the Court may deem proper; and
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b)
to persons noticed for depositions or designated as trial witnesses to the
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extent reasonably necessary in preparing to testify and to outside consultants or experts
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retained for the purpose of assisting counsel in the litigation, provided, however, that in all
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such cases, except as noted in paragraph 3(c) below, the individual to whom disclosure is
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to be made has signed and filed with the Court a Confidentiality Agreement, the form of
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which is attached hereto as Exhibit A, containing —
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(1)
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a recital that the signatory has read and understands this Order and
will abide by it;
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(2)
a recital that the signatory understands that unauthorized
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disclosures of stamped confidential documents and their substance constitute
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contempt of court; and
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(3)
a statement that the signatory consents to the exercise of personal
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jurisdiction by this Court for purposes of enforcing this Order.
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c)
Each outside consultant or expert retained for the purpose of assisting
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counsel in this litigation to whom disclosure is made pursuant to paragraph 3(b) above
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must sign a Confidentiality Agreement, the form of which is attached hereto as Exhibit A.
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That Agreement then must be returned to Plaintiff's counsel who shall retain any such
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Agreements during the pendency of the litigation and must certify in writing to Zimmer’s
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counsel that (1) a disclosure was made to a consulting expert and (2) the consulting expert
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signed and returned the Confidentiality Agreement.
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d)
Before disclosing stamped confidential documents to any person listed in
Snell & Wilmer
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
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subparagraph 3(a) or 3(b) who is a customer or competitor (including employees or
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consultants of either) of the party that so designated the document, the party wishing to
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make such disclosure shall give at least 15 days advance notice in writing to the counsel
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who designated such information as confidential, stating the names and addresses of the
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person(s) to whom the disclosure will be made, identifying with particularity the
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documents to be disclosed, and stating the purposes of such disclosure. If, within the 15-
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day period, a motion is filed objecting to the proposed disclosure, the disclosure shall not
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be made unless and until the Court has denied such motion. The Court will deny the
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motion unless the objecting party shows good cause why the proposed disclosure should
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not be permitted.
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(1)
As used in this paragraph 3(d), the term “customer” means any
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direct purchaser of products from any defendant, or any regular indirect purchaser
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of defendants. The term “customer” is not meant to include physicians.
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(2)
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manufacturer or seller of medical devices.
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As used in this paragraph 3(d), the term “competitor” means any
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Each person executing the Confidentiality Agreement submits to the jurisdiction of
this Court for the purposes of enforcement of this Order, either prior to or following the
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completion of this action. Jurisdiction of this action is to be retained by this Court after final
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determination for purposes of enabling any party or persons affected by this Order to apply to the
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Court at any time for such direction or further decree as may be appropriate for the construction
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or enforcement of this Order or for such additional relief as may become appropriate.
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confidential documents that it has produced.
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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
Stamped confidential documents included as part of any pleading or memorandum
shall be filed according to this Court’s Local Rule 10-5.
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Snell & Wilmer
Nothing in this Order shall preclude the disclosure by any party of publicly
available documents or information.
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Nothing in this Order shall preclude the disclosure by a party of stamped
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Persons with knowledge may be deposed regarding stamped confidential
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documents or the subject matter thereof. Only the parties and persons described in paragraph 3,
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including the court reporter and the witness, shall be present at such depositions. Transcripts of
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said depositions shall be treated as stamped confidential documents in accordance with this
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Order.
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9.
If, at the time of trial, counsel for any of the parties attempts to introduce into
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evidence or use in cross-examination any stamped confidential documents, whether as part of a
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document or deposition testimony, counsel for either party may request the Court to preserve the
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confidentiality of that stamped confidential document as the Court deems appropriate.
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10.
In the event that another party disagrees with a party’s designation of any
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document or information as confidential, the objecting party shall advise counsel for the
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designating party, in writing, of the objection and identify the document or item with sufficient
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specificity to permit identification. Within 20 days of receiving the objection, the designating
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party shall advise the objecting party’s counsel whether the designating party will change the
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designation of the document or item. If this cannot be resolved between the parties, then the
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dispute will be presented to the Court by motion or otherwise. During the pendency of any such
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motion, the designated document or item shall continue to be treated as a stamped confidential
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document and subject to the provisions of this Order. On the hearing of any such motion, the
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burden shall be on the designating party to establish that the designated document or item should
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be deemed confidential.
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If another court or an administrative agency subpoenas or orders production of
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stamped confidential documents that a party has obtained under the terms of this Order, such
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party shall promptly notify the party or other person who designated the document as confidential
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of such subpoena, order or other legal process.
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12.
If a producing party inadvertently or unintentionally produces to a receiving party
paragraph 1, the producing party shall, within 30 days of the discovery of the inadvertent
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Snell & Wilmer
any document or information without marking it as a stamped confidential document pursuant to
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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
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production, give notice to the receiving party in writing and thereafter the receiving party shall
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treat the document as a stamped confidential document.
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disclosure shall not be deemed a waiver in whole or in part of the producing party’s claim of
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restriction either as to specific documents and information disclosed or on the same or related
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subject matter.
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13.
Such inadvertent or unintentional
If a producing party inadvertently or unintentionally produces to a receiving party
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any documents or information subject to a claim of privilege or immunity from discovery
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(including but not limited to attorney-client privilege, work product immunity, and immunities
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created by federal or state statute or regulation), the producing party shall, within 30 days of the
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discovery of the inadvertent production, give notice to the receiving party in writing of the
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producing party’s claim of privilege or immunity from discovery. Thereafter, the receiving party
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shall immediately return to the producing party the original and all copies of the restricted
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materials, including copies of the restricted materials disseminated to other persons by the
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receiving party. The receiving party will be deemed to have notice that material is restricted if
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the party reasonably should recognize the material is privileged or protected from discovery, or
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upon written notice by the producing party. Such inadvertent or unintentional disclosure shall not
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be deemed a waiver in whole or in part of the producing party's claim of privilege or immunity
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related subject matter. In the event that the receiving party disagrees with the producing party’s
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claim of privilege or immunity from discovery, then the receiving party shall notify the producing
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party within five (5) business days of receipt of the producing party’s written notice of claim of
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privilege, and shall set forth the precise grounds upon which the receiving party's position rests.
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If the parties cannot resolve the matter, then the dispute will be presented to the Court by motion
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or otherwise. During the pendency of any such motion, the receiving party shall not copy,
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distribute, or otherwise use in any manner the disputed documents or information, and shall
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instruct all persons to whom the receiving party has disseminated a copy of the documents or
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information that the documents or information are subject to this Order and may not be copied,
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Snell & Wilmer
from discovery either as to specific documents and information disclosed or on the same or
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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
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distributed, or otherwise used pending the motion and further notice from the Court.
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The provisions of this Order shall not terminate at the conclusion of this lawsuit.
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Within 90 days after final conclusion of all aspects of this litigation, stamped confidential
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documents and all copies of same (other than exhibits of record) either shall be destroyed or
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returned to the producing party. In the event that stamped confidential documents are produced
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in electronic form, or are put into electronic form by the receiving party with the consent of the
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providing party, then the receiving party shall delete all electronic copies of stamped confidential
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documents from all computer systems, disks, and other electronic medium and devices. All
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counsel of record shall make certification of compliance herewith and shall deliver the same to
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counsel for the party who produced the documents not more than 120 days after final termination
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of this litigation.
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The attorneys of record are responsible for employing reasonable measures to
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control and record, consistent with this Order, duplication of, access to, and distribution of
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stamped confidential documents, including abstracts and summaries thereof. No duplications of
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stamped confidential documents shall be made except by counsel to provide working copies and
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for filing in Court under seal pursuant to paragraph 7.
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The Clerk may return to counsel or destroy any stamped confidential documents in
its possession.
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It is expressly understood by and between the parties that in granting access to or
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producing stamped confidential documents in this litigation, Zimmer shall be relying upon the
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terms and conditions of this Order.
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If, in the event that any stamped confidential document or the information
pleading, motion, deposition transcript or other paper filed with the Clerk of any Court, the
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producing party will have the opportunity to request the Court to preserve the confidentiality of
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that stamped confidential document as the Court deems appropriate, consistent with the Ninth
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Snell & Wilmer
contained therein is included with, or the contents thereof are in any way disclosed, in any
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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
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Circuit’s opinion in Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir.
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2006).
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protected documents and information shall be filed under seal and maintained under seal by the
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Clerk until further order of this Court. The use of any protected document or of the information
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contained therein and any testimony associated with the protected information contained therein
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could be held in camera, if the Court deems it necessary, to prevent disclosure to nonparties, or
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otherwise under such circumstances as will prevent the inadvertent disclosure of such documents
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and information, unless the Court orders otherwise upon good cause shown. This paragraph shall
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Until the Court makes a determination on the preservation of confidentiality, such
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not apply with respect to documents admitted into evidence as exhibits at the trial of this matter.
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The producing party reserves the right, however, to petition the Court for protection with respect
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to such documents admitted into evidence as exhibits at trial.
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Respectfully submitted this 31st day of January, 2013.
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SNELL & WILMER L.L.P.
BRADLEY, DRENDEL & JEANNEY
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By:
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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
By:
/s/ Mark Wenzel
Mark Wenzel, Esq.
P.O. Box 1987
Reno, NV 89505
Attorneys for Plaintiff
James Milligan
Attorneys for Defendants
Zimmer Holdings, Inc., Zimmer, Inc.,
and Zimmer Orthopaedic Surgical
Products, Inc.
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Snell & Wilmer
/s/ Jay J. Schuttert
Vaughn A. Crawford, Esq.
Jay J. Schuttert, Eq.
Justin S. Hepworth, Esq.
3883 Howard Hughes Pkwy., Ste. 1100
Las Vegas, NV 89169
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ORDER
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IT IS SO ORDERED.
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DATED this 4th day of February, 2013.
______ day of ____________, 2013.
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_______________________________________
UNITED STATES MAGISTRATE JUDGE
_________________________________________
UNITED STATES DISTRICT COURT JUDGE
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EXHIBIT A
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JAMES MILLIGAN,
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Case No.: 3:12-cv-00518-LRH-WGC
Plaintiff,
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v.
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ZIMMER HOLDINGS, INC., a foreign
corporation; ZIMMER, INC., a foreign
corporation; ZIMMER ORTHOPAEDIC
SURGICAL PRODUCTS, INC., a foreign
corporation; ABC CORPORATIONS I-X;
and JOHN DOES I-X, inclusive,
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Defendants.
Snell & Wilmer
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
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1.
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I acknowledge that I am about to receive confidential information supplied by
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defendants Zimmer Holdings, Inc., Zimmer, Inc., and Zimmer Orthopaedic Surgical Products,
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Inc. (collectively “Defendants”).
2.
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I have read the Protective Order governing the restricted use of confidential
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information in this litigation, a copy of which order has been provided to me. I understand the
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Protective Order and agree to abide by it.
3.
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I will not utilize any stamped confidential document or other information subject
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to the Protective Order for any purpose other than this litigation. I further affirm that I will not
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reveal the confidential information to, nor discuss it with, anyone, except in accordance with the
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terms of the Protective Order.
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I understand unauthorized disclosures of stamped confidential documents or their
substance constitute contempt of court.
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At the termination of this litigation, I will return all documents marked
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“Confidential,” or “For Counsel Only,” or “Attorneys’ Eyes Only,” as well as any copies,
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summaries or abstracts of them, and documents related to them, whether in hard copy, electronic,
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or digitized format, to the attorney providing confidential materials to me.
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6.
I submit to the jurisdiction of the United States District Court, District Of Nevada,
as necessary to enforce the provisions of the Protective Order.
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Dated:_______________________
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____________________________________
Printed Name
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____________________________________
Address
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____________________________________
City, State, Zip
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____________________________________
Telephone Number
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200
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Snell & Wilmer
____________________________________
Signature
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