Singer v. C R Bard Incorporated et al, No. 2:2019cv01579 - Document 18 (D. Nev. 2019)
Court Description: PROTECTIVE ORDER Granting 16 Stipulated Protective Order. Signed by Magistrate Judge Cam Ferenbach on 11/8/2019. (Copies have been distributed pursuant to the NEF - SLD)
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Singer v. C R Bard Incorporated et al Doc. 18 1 ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 2 GREENBERG TRAURIG, LLP 3 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 4 Telephone: (702) 792-3773 Facsimile: (702) 792-9002 5 Email: swanise@gtlaw.com 6 CASEY SHPALL, ESQ. Admitted pro hac vice 7 GREGORY R. TAN, ESQ. 8 Admitted pro hac vice GREENBERG TRAURIG, LLP th 9 1144 15 Street, Suite 3300 Denver, Colorado 80202 10 Telephone: (303) 572-6500 Email: shpallc@gtlaw.com 11 tangr@gtlaw.com 12 Counsel for Defendants 13 14 IN THE UNITED STATES DISTRICT COURT 15 FOR THE DISTRICT OF NEVADA 16 ROBERT SINGER, 17 CASE NO. 2:19-cv-01579-JCM-VCF Plaintiff, 18 v. 19 20 C. R. BARD, INC.; BARD PERIPHERAL VASCULAR, INCORPORATED, 21 Defendants. 22 23 24 STIPULATED PROTECTIVE ORDER 25 / / / 26 / / / 27 / / / 28 / / / 1 Dockets.Justia.com 1 3. This Action. “This Action” means Robert Singer v. C. R. Bard, Inc., et al., Case No. 2 2:19-cv-01579-JCM-VCF, pending in the United States District Court District of Nevada. 3 II. Information Within the Scope of the Protective Order 4 4. This Protective Order shall govern all hard copy and electronic materials, the information 5 contained therein, and all other information produced or disclosed during This Action, including all 6 copies, excerpts, summaries, or compilations thereof, whether revealed in a document, deposition, other 7 testimony, discovery response or otherwise, by any party to This Action or its representatives (the 8 “Supplying Party”) to any other party or parties to This Action or their representatives (the “Receiving 9 Party”), whether provided voluntarily, pursuant to formal discovery procedures, or otherwise. The 10 Parties agree that confidentiality of materials at trial will be determined by the Court after a separate 11 briefing and/or argument process. 12 5. The scope of confidentiality protections afforded under this Protective Order does not 13 include any trial exhibits or trial testimony entered into evidence during the case known as Phillips v. 14 C. R. Bard, Inc., et al., No. 3:12-cv-00344-RCJ-WGC (D. Nev. June 1, 2015), as to which that Court 15 entered an Order denying Bard’s motion to seal trial exhibits and trial transcripts. 16 In addition, this Protective Order does not apply to any document that was admitted into evidence during 17 the three MDL Bard IVC filter bellwether cases In Re: Bard IVC Filters Products Liability Litigation, 18 MDL 2641, listed in Exhibit 2 of the MDL Court’s Suggestion of Remand and Transfer Order, Dkt. No. 19 To the extent only a portion of a document was admitted, only that portion of the document that was 20 admitted shall not be subject to protection. 21 Notwithstanding the foregoing, this Protective Order does not address or alter whether or not 22 Defendants may argue that non-confidential documents should still be entitled to protection under the 23 work-product doctrine and/or the attorney-client communication privilege. 24 III. Designating Information As “Confidential” Pursuant to This Protective Order 25 6. Documents. Any Supplying Party producing documents that contain information that 26 meets the definition of Confidential Information as provided in Paragraph 1 and 2 herein, may designate 27 the contents of the documents as “Confidential” prior to or at the time of production by placing the 28 following designation on the documents: “CONFIDENTIAL – Subject to Protective Order.” Where a 3 1 document consists of more than one page, each page of the document shall be designated as such. Any 2 document or information for which it is impracticable or impossible to affix such a legend may be 3 designated by written notice to that effect with a reasonable description of the material in question 4 including a BATES number, where applicable. 5 7. If a Supplying Party makes documents or information available for inspection, rather than 6 delivering copies to another party, no “Confidential” designation is required in advance of the initial 7 inspection. For the purposes of initial inspection only, the documents shall be considered 8 “CONFIDENTIAL.” Upon production of the inspected documents, the Supplying Party shall designate 9 which of the produced or copied documents and materials are or contain Confidential Information 10 pursuant to Paragraph 6 of this Order. 11 8. Written Discovery. If responses to written discovery contain Confidential Information 12 as defined in Paragraph 1 and 2 of this Protective Order, the Responding Party may designate the 13 responsive documents and information, as set forth in Paragraph 6, with specific indication of the page 14 and line references of the material that is “Confidential” under the terms of this Protective Order. 15 9. Depositions. The parties may designate as Confidential any deposition transcript, or 16 portions thereof, in This Action that meets the definition of Confidential Information provided in 17 Paragraphs 1 and 2 of this Protective Order. Counsel for the designating party shall advise the court 18 reporter and the parties on the record during the deposition or by letter no later than thirty (30) calendar 19 days after the court reporter provides the parties with the final deposition transcript. If any portion or all 20 of a deposition transcript is designated as Confidential Information, the court reporter shall label the cover 21 page of the original and one copy of the transcript to state that Confidential Information is contained 22 therein, and shall label as “Confidential” each page of the transcript and/or exhibits to the deposition 23 transcript that constitute “Confidential Information.” Confidential designations of transcripts or portions 24 thereof, apply to audio, video, or other recordings of the testimony. The court reporter shall clearly mark 25 any transcript or portion thereof prior to the expiration of the 30-day period as “DO NOT DISCLOSE – 26 SUBJECT TO FURTHER CONFIDENTIALITY REVIEW.” Deposition transcripts or portions thereof 27 will be treated as Confidential Information until expiration of the 30-day period. If any party does not 28 designate the transcript as “Confidential” either at the time of the deposition or within the 30-day period 4 1 defined above, no portion of the entire transcript will be deemed “Confidential” and the “DO NOT 2 DISCLOSE- SUBJECT TO FURTHER CONFIDENTIALITY REVIEW” legend shall be removed. The 3 30-day period may not be extended without mutual agreement of the parties. 4 10. Confidential Information Produced by Third Parties. A party in This Action may 5 designate as Confidential any document, information, or testimony produced or supplied by any person 6 or entity not a party to This Action, that constitutes or meets the definition of Confidential Information 7 as defined in Paragraphs 1 and 2 of this Protective Order. The party claiming confidentiality shall 8 designate the information as such within thirty (30) days of its receipt of such information. Any party 9 receiving information from a third party shall treat such information as Confidential Information during 10 this thirty (30) day period while all parties have an opportunity to review the information and to determine 11 whether it should be designated as confidential. Any party designating third party information as 12 Confidential Information shall have the same rights, duties, and obligations, as a Supplying Party under 13 this Protective Order. 14 11. Publicly Available Information. The confidentiality restrictions and confidentiality 15 obligations set forth herein shall not apply to information that is at the time of production or disclosure, 16 or subsequently becomes, through no wrongful act on the part of the Receiving Party, generally available 17 to the public through publication or otherwise. This includes information published during public 18 hearings and trials, if the Supplying Party does not move to seal or appeal any order denying such motion 19 to seal within the time permitted under the applicable rules. Notwithstanding the foregoing, this 20 Protective Order does not address or alter whether or not Defendants may argue that non-confidential 21 documents should still be entitled to protection under the work-product doctrine and/or the attorney-client 22 communication privilege. 23 IV. Limitations on Use of Confidential Information 24 12. All Confidential Information shall be used for the purpose of this lawsuit only, and except 25 as permitted by this Order, the parties and their respective attorneys, as well as experts or consultants, 26 shall not give, show, or otherwise divulge or disclose the Confidential Information, or any copies, prints, 27 negatives or summaries thereof to any person or entity. Notwithstanding the foregoing provisions of this 28 paragraph, nothing in this Order shall prevent the use of any of the documents or electronically stored 5 1 information (“ESI”) produced pursuant to this Protective Order in other actions brought by the plaintiff’s 2 counsel, so long as a comparable protective order is entered in those other actions. 3 13. Confidential Information pursuant to this Protective Order shall be treated by the parties, 4 their counsel, and any other signatory to this Protective Order as being confidential and private. Any 5 copy of Confidential Information shall have the same status as the original. The disclosure and use of 6 Confidential Information shall be confined to the permissible disclosures and uses set forth in this 7 Protective Order, and no one shall disclose or use Confidential Information in a manner inconsistent with 8 the terms and the intent of this Protective Order. 9 14. Confidential Information may be disclosed only to the following persons and shall be used 10 solely for the litigation of This Action and may not be disclosed to anyone not authorized under this 11 paragraph: 12 a. 13 Parties, their representatives, in-house counsel and regular employees who are actively engaged in, or actively overseeing This Action; 14 b. 15 Counsel of record, their associated attorneys, and support staff, including paralegal and secretarial personnel who are working on This Action; 16 c. 17 Experts and consultants (including their employees/contractors) who are consulted or retained by a party to assist in the litigation of This Action; 18 d. Third-party contractors and their employees who are consulted or retained by one 19 or more parties to provide litigation-support or copy services in connection with 20 the litigation of This Action 21 e. Witnesses or prospective witnesses in This Action; 22 f. Court reporters, videographers, and other persons involved in recording deposition 23 testimony in This Action; 24 g. 25 appointed by the Court, or if an appeal, the court with appellate jurisdiction; and 26 27 The Court and its personnel, including any mediators and/or special masters h. 15. Jurors in This Action. Prior to the disclosure of any Confidential Information to any person identified in 28 Paragraph 14 above (except the Court and its personnel and jurors in This Action), the disclosing party 6 1 will provide each potential recipient of Confidential Information with a copy of this Protective Order, 2 which said recipient shall read. Upon reading this Protective Order, such person shall sign an Agreement 3 to Maintain Confidentiality (“Confidentiality Agreement”), attached to this Order as Exhibit A, 4 acknowledging that he or she has read this Protective Order and shall abide by its terms. Notwithstanding 5 the foregoing provision, Confidential Information may be disclosed to a witness who will not sign an 6 Confidentiality Agreement in a deposition at which the party who has designated the Confidential 7 Information is represented or has been given notice that Confidential Information produced by the party 8 may be used. These Confidentiality Agreements are strictly confidential and shall be maintained by 9 counsel for each party and only with good cause shown and separate court order will the Confidentiality 10 Agreements be disclosed to the opposing side. Persons who come into contact with Confidential 11 Information for clerical or administrative purposes, and who do not retain copies or extracts thereof, are 12 not required to execute Confidentiality Agreements but must comply with the terms of this Protective 13 Order. 14 16. All persons receiving or given access to Confidential Information in accordance with the 15 terms of this Order consent to the continuing jurisdiction of this Court for the purposes of enforcing this 16 Order and remedying any violations thereof. 17 17. Confidential Information shall not be placed or deposited in any sort of data bank that is 18 made available for indiscriminate or general circulation to lawyers, litigants, consultants, expert 19 witnesses or any other persons not working on This Action and not signatories to this Protective Order. 20 This paragraph and the other provisions of this Order shall not apply to materials which, if challenged by 21 any party, the Court rules are not entitled to protection. This paragraph does not limit or restrict in any 22 way the manner in which a party may store and make Confidential Information available to the attorneys, 23 support staff, experts, and any other persons or entities working on This Action, provided the general 24 terms of this Order are followed. 25 18. The parties and their counsel as well as their technical consultants and experts shall also 26 not sell, offer, advertise, publicize nor provide under any condition any Confidential Information 27 produced by any other party to any competitor of any defendant or to any employee or any competitor 28 (irrespective of whether they are retained as an expert by a party in This Action). 7 1 19. In the event that either of the parties is served by a non-party with a subpoena for 2 Confidential Information that was originally provided and claimed as Confidential by another party, the 3 Receiving Party will give notice to the Supplying Party, where reasonably possible, no less than ten (10) 4 business days prior to disclosure by providing a copy of the subpoena, to allow a reasonable opportunity 5 for the Supplying Party to object to such production before any production takes place. 6 20. If a Receiving Party learns of any unauthorized disclosure of Confidential Information, it 7 shall take reasonable efforts to immediately (a) inform the Supplying Party in writing of such disclosure, 8 including to whom the material was disclosed; (b) make a reasonable effort to retrieve all copies of the 9 Confidential Information only to the extent the Receiving Party has control over the unauthorized 10 disclosed documents; (c) and to the extent the Receiving party has control over the person or persons to 11 whom unauthorized disclosures were made, inform the persons of the terms of this Protective Order. 12 V. Changes in and Objections to Designation of Information 13 21. “Clawback” of Irrelevant Confidential Information. If a Supplying Party produces 14 any document containing Confidential Information that they identify to the Receiving Party as irrelevant, 15 the Supplying Party may notify the Receiving Party of the Irrelevant Confidential Information in writing. 16 If a portion of the document contains information relevant to This Action, the Supplying Party shall also 17 supply the Receiving Party with a new copy of the document which shall be substituted for the earlier 18 produced document. Upon receipt of the substitute document, the Supplying Party shall promptly return 19 or destroy the earlier produced document. Upon receipt of the Supplying Party’s written notice, the 20 Receiving Party shall, within a reasonable time, not exceed twenty (20) days, (a) treat such material in 21 accordance with this Order; (b) take reasonable steps to notify any person to whom the Receiving Party 22 disclosed such information of the new confidential designation; (c) take reasonable steps to procure the 23 return of all copies of such material from any such persons who are not entitled to receipt of Confidential 24 Information under the terms of this Protective Order; (d) request in writing that such person procure the 25 return of such information from any person to whom such person may have disclosed the information. 26 22. Challenges to Designation of Confidential Information. A Receiving Party may 27 challenge a Supplying Party’s designation or re-designation by notifying the Supplying Party in writing 28 that the confidentiality designation does not meet the definition of “Confidential Information.” The 8 1 designation by any party of Confidential Information raises no presumption that the information or 2 documents are entitled under the law to protection. If any party contends, in writing, that any document, 3 material, ESI, or other thing has been erroneously designated as Confidential Information, the party who 4 designated the information as Confidential Information shall initiate a meet and confer within ten (10) 5 days with the opposing party and the parties shall make a good faith effort to resolve issues relating to 6 such designations. After the meet and confer, the party who designated the information as Confidential 7 Information shall file a motion with the Court within thirty (30) days of receiving such written notification 8 establishing that the information is entitled to protection as Confidential Information under the law. If 9 the designating party fails to timely file such a motion within the allotted thirty (30) day period, the 10 document, ESI, material, or other thing, which is designated as Confidential Information, shall forthwith 11 be produced and be deemed not to be Confidential Information. Any information or thing being 12 challenged as inappropriately designated as Confidential Information shall nonetheless be treated as 13 Confidential Information unless and until either (a) the designating party gives written permission to do 14 otherwise, (b) the designating party fails to file a motion establishing that the challenged material is 15 subject to protection as Confidential Information under the law within the thirty (30) day time period, or 16 (c) the Court rules that the document, material, ESI, or other thing shall not be treated as confidential. 17 Should the Court rule that any item designated as Confidential Information is not entitled to protection 18 under the law, the designating party shall, within fourteen (14) days after all appeals are exhausted, 19 provide the party challenging the confidential designation with copies of each item free of any language 20 indicating that the item is subject to a Protective Order. A Receiving Party shall only challenge documents 21 under this Paragraph that they have a good faith basis for using in This Action. 22 23. Nothing in this Protective Order shall be deemed to shift the burden of proof to the party 23 challenging the confidential designation with regard to whether the materials produced pursuant to this 24 Protective Order are entitled to protection under the law as Confidential Information. 25 VI. Filing Under Seal 26 24. Where a Party Files Documents and Contends the Documents Should be Kept 27 Sealed. Where a party intends to file documents that contain Confidential Information with the Court, 28 said party must file a motion for an order sealing the documents consistent with applicable law and 9 1 comply with the provisions of FRCP 5.2 and LR IC 6-1 of the local rules. A copy of the motion must be 2 served on all parties that have appeared in the case. 3 25. Where a Party Files Documents Claimed as Confidential by Another Party. A party 4 that files or intends to file with the Court Confidential Information produced by another party but does 5 not intend to request to have the records sealed, must do the following: 6 a. 7 8 Make arrangements consistent with FRCP 5.2 and LR IC 6-1 of the local rules to lodge the documents under seal. b. 9 File redacted copies of the documents (if appropriate) so that they do not disclose the contents of the records that are subject to the confidentiality agreement or 10 protective order; 11 c. Serve a copy of the motion on all parties that have appeared in the case; and 12 d. Give written notice to the party that produced the documents that the documents 13 will be placed in the public court file unless the party files a timely motion to seal 14 records. 15 If the party that produced the Confidential Information and was served with the abovementioned 16 notice fails to file a motion to seal the records within fifteen (15) days of receipt of the notice referenced 17 in Subparagraph 25.d. or to obtain a court order extending the time to file such motion, the clerk must 18 promptly remove all the documents filed under seal pursuant to this provision from the envelope or 19 container where they are located and place them in the public file. If the party files a motion or an 20 application to seal within fifteen (15) days of receipt of the notice referenced in Subparagraph 25.d. days 21 or such later time as the Court has ordered, these documents are to remain conditionally under seal until 22 the Court rules on the motion or application and thereafter are to be filed as ordered by the Court. 23 This section shall not apply with respect to documents admitted into evidence as exhibits at the 24 trial of this matter. The Supplying Party reserves the right, however, to petition the Court for protection 25 with respect to such documents admitted into evidence as exhibits at trial. 26 / / / 27 / / / 28 / / / 10 1 VII. 2 Miscellaneous Provisions 26. Amending or Modifying Protective Order. By written agreement of the parties, or upon 3 motion and order of the Court, the terms of this Protective Order may be amended or modified. This 4 Protective Order shall continue in force until amended or modified by consent or agreement of the parties 5 or by order of the Court, and shall survive any final judgment or settlement in This Action, including but 6 not limited to any final adjudication of any appeals petitions for extraordinary writs, unless otherwise 7 vacated or modified by the Court. The Court shall have continuing jurisdiction over the terms and 8 provisions of this Protective Order. 9 27. After Final Adjudication. Upon written demand by the Supplying Party made within 10 thirty (30) days after final adjudication of This Action, including but not limited to, any final adjudication 11 of any appeals and petitions for extraordinary writs, the Receiving Party shall assemble and return all 12 Confidential Information to the Supplying Party or, alternatively, shall destroy all such material at the 13 Supplying Party’s expense. The Receiving Party shall verify the complete destruction or return to the 14 Supplying Party all such Confidential Information by executing and mailing to counsel for the Supplying 15 Party an Acknowledgment in the form attached hereto as Exhibit B. A copy of each such executed 16 Acknowledgment shall be maintained by counsel for the Receiving Party and counsel for the Supplying 17 Party. Notwithstanding the foregoing provisions of this paragraph, the Receiving Party may maintain its 18 privileged communications, work product, Confidentiality Agreements and Acknowledgments pursuant 19 to the Protective Order, materials required to be retained pursuant to applicable law, and all court-filed 20 documents even though they contain Confidential Information, but such materials shall remain subject 21 to the terms of this Protective Order. This provision may not be invoked while the plaintiff’s attorneys 22 of record have active pending cases relating to IVC Filters manufactured by C. R. Bard, Inc. and/or Bard 23 Peripheral Vascular, Inc. 24 28. The terms of this Protective Order do not preclude, limit, restrict, or otherwise apply to 25 the use of Confidential Information at trial. The use of Confidential Information during trial will be 26 addressed in a later agreement between the parties, or, if they cannot reach an agreement, by further order 27 of the Court. 28 / / / 11 1 29. Nothing in this Order shall be deemed a waiver of any parties’ right to oppose any motion 2 by any other party for a protective order or to oppose any objection to the disclosure of any information 3 or documents on any legal grounds, including, but not limited to, the grounds that the party seeking the 4 protective order has neither timely nor adequately objected to disclosure of such documents and 5 information or moved for a protective order. 6 30. This Protective Order does not relieve any party of its obligations to respond to otherwise 7 proper discovery in This Action. Nothing contained in this Order, or any action taken pursuant to it shall 8 waive or impair any party’s right to assert claims of privilege or work product protection, or the right of 9 any party to object to the relevancy of admissibility of documents or information sought or produced into 10 assert objections to requested discovery on grounds other than Confidential Information. This Protective 11 Order also shall not affect or create any presumption with respect to the right of any party from seeking 12 or obtaining additional protection with respect to any documents, materials, or information where allowed 13 by law. 14 31. Electronically Stored Information (“ESI”) Document Production Review Process. 15 To expedite document production of ESI from Defendants, the parties, through their respective counsel, 16 have agreed to a primarily “no-eyes-on” document production as to relevancy while still performing a 17 privilege review for ESI which Defendants will be producing subsequent to this Protective Order. The 18 Parties recognize that a substantial portion of the documents that will be produced in This Action were 19 initially produced in In re: Bard IVC Filters Products Liability Litigation, MDL No. 2641, in the United 20 States District Court District of Arizona (“IVC Filter MDL”), pursuant to a “no-eyes-on” document 21 production as to relevancy in order to expedite production in the MDL. As a result, the Receiving Party 22 agrees to make a good faith effort to apply the terms of this Protective Order consistent with that 23 production. The Parties further agree that any additional document productions in This Action may be 24 made pursuant to this “no-eyes-on” review/ESI production process (the “Process”). 25 32. The Parties and their counsel agree to the entry of the Protective Order in This Action, 26 and to the Process, which shall govern the production of documents, materials, and other information, 27 including the substance and content thereof; and use of any such documents, materials, and other 28 information during discovery, in conjunction with court filings or hearings, during any other pre-trial 12 1 activity, and during trial. The Parties and their counsel have also agreed that all ESI produced by 2 Defendants pursuant to the Process will be subject to the following terms: 3 a. At the time of production, Defendants will identify the documents or ESI as being 4 produced pursuant to the Process and subject to the restrictions of this Paragraph 5 (the “Process ESI”). 6 b. Nothing in this Protective Order shall prevent the use of any Process ESI in other 7 actions brought by the Plaintiff’s counsel, so long as a substantially comparable 8 protective order is entered in those other actions. 9 c. Prior to using any document or ESI from the Process ESI as part of a filing, at a 10 deposition, or at a trial or hearing in this matter, Plaintiffs shall make a good faith 11 effort to identify whether the document or ESI contains any information that is 12 subject to redaction under Paragraphs 33-34 (“Redaction Requirements”) of this 13 Protective Order and corresponding Exhibit C (“Redaction Protocol”) and to 14 redact any such information in accordance with this Order and redaction protocol. 15 d. Defendants shall independently have the right to identify any documents or ESI 16 from the Process ESI, including documents identified by Plaintiffs pursuant to 17 Subparagraph 32.c. above, as subject to the Redaction Requirements and 18 Redaction Protocol and to require the redaction of the information set forth therein; 19 in that event, Defendants shall provide Plaintiffs with a redacted version of the 20 subject documents or ESI with the same production Bates number(s) and Plaintiffs 21 shall destroy any unredacted copies or versions of the document that they possess. 22 e. Defendants shall have the right to identify any document, file, or other form of ESI 23 produced pursuant to the Process as both being irrelevant to the matters in dispute 24 in this case and containing trade secret or other confidential information and to 25 “claw back” such ESI or documents from the production. After Plaintiffs use a 26 document or ESI from the Process ESI as part of a filing, at a deposition, or at a 27 trial or hearing in this matter, Defendants shall have 30 days to seek claw back of 28 the particular document pursuant to this Paragraph; this latter requirement does 13 1 not apply to Process ESI that has not been used by Plaintiffs as part of a filing, at 2 a deposition, or at a trial or hearing in this matter, which may be clawed back at 3 any time. 4 f. Plaintiffs shall have the right to challenge any designation or claw back by 5 Defendants under Subparagraphs 32.d. or 32.e. above by submission of the ESI or 6 document to the Court under seal, and any filings that refer to the protected 7 substance of the ESI or document must, likewise, be made under seal. 8 g. i. The production in This Action, use in This Action, or any other disclosure in 9 This Action of the substance or content of documents, materials, or other 10 information that is protected by the attorney-client privilege, work-product 11 protection, or any other privilege or protection shall not amount to waiver of the 12 privilege and/or protection in This Action, or in any other federal or state 13 proceeding, and Plaintiff and Plaintiff’s counsel stipulate that they will not argue 14 in any other action or proceeding, whether in federal or state court, that the 15 production, use, or other disclosure of such documents, materials, or other 16 information in This action constitutes waiver of the privilege or protection. 17 ii. 18 that reasonably appears to be protected by any privilege or other protection, they 19 shall promptly notify the Supplying Party in writing. If the Supplying Party 20 determines that the document, material, or other information is privileged or 21 otherwise protected, it shall make such an assertion in writing within 30 days of 22 receipt of notification. After being notified, the Receiving Party must promptly 23 return, sequester, or destroy the specified information and any copies it has; must 24 not use or disclose the information until the claim is resolved; must take reasonable 25 steps to retrieve the information if the party disclosed it before being notified; and 26 may promptly present the information to the court under seal for a determination 27 of the claim. Failure to assert the privilege or protection within 30 days of receipt If the Receiving Party identifies a document, material, or other information 28 14 1 of notification shall amount to waiver of any privilege or protection only of the 2 document, material, or other information identified in the notification. 3 Unless waived under subsection (ii) above, at any time, a party that produces any document, 4 material, or other information that it believes to be protected by the attorney-client privilege, work5 product protection, or any other privilege or protection may assert the privilege or protection in 6 writing. After being notified, the Receiving Party must promptly return, sequester, or destroy the 7 specified information and any copies it has; must not use or disclose the information until the claim is 8 resolved; must take reasonable steps to retrieve the information if the party disclosed it before being 9 notified; and may promptly present the information to the court under seal for a determination of the 10 claim. 11 h. To the extent that the documents or ESI produced pursuant to the Process contain 12 any adverse event reporter names or information of a patient who is not a party to 13 this litigation and which would otherwise be redacted in accordance with the 14 Redaction Requirements of this Protective Order, Plaintiffs and their counsel and 15 agents shall not contact the patient or reporter of an adverse event unless and until 16 the parties go through the processes outlined in Subparagraphs 32.e. and 32.g. 17 above with respect to redaction of information and this Court determines the 18 information is not subject to redaction. 19 33. Redaction of Adverse Event Reporter, HIPAA, and Other Information Pursuant to 20 Exhibit C. Defendants have produced in the IVC Filter MDL and may produce in This Action additional 21 and updated adverse event reports and complaint files maintained pursuant to 21 U.S.C. § 360i, 21 22 C.F.R. § 803.18 and 21 C.F.R. § 820.1-.250, as well as documents relating to those adverse events and 23 complaint files. To the extent that Defendants are able to identify whether these reports and complaint 24 files relate to the Plaintiff at the time they are produced in This Action, the parties and their respective 25 counsel have consented to and agreed that the Defendants shall refrain from redacting the following 26 identifiable information, as defined in 21 C.F.R. § 20.63(f), in the below circumstance: 27 28 a. Identifiable information of the Plaintiff in this litigation shall not be redacted, pursuant to 21 C.F.R. § 20.63(f)(1)(iii). 15 1 Otherwise, in accordance with 21 C.F.R. § 20.63(f) and other applicable laws, statutes, and 2 regulations, the Defendants shall only redact such information as is set forth in the agreed Redaction 3 Protocol attached to this Protective Order as Exhibit C, and Plaintiffs shall have the right to object to 4 any redactions made. 5 The parties acknowledge that this Stipulated Order is intended to and does satisfy the written 6 consent requirement of the federal regulations. 7 a. Any documents containing any reporter or personal identifying information shall 8 be designated and branded as confidential in accordance with this Order. To the 9 extent that any adverse event reporter information or patient information 10 belonging to any individual or entity who is not a party to this litigation is 11 disclosed, because such information is not required to be redacted in accordance 12 with this Protective Order (see Paragraph 29-30), the Receiving Party and their 13 counsel and agents shall not contact the patient or reporter involved in an adverse 14 event. 15 b. Any additional documents or ESI Defendants produce in This Action will be 16 produced subject to this Order and marked Confidential. Thus, any documents or 17 ESI containing any adverse event reporter, personal identifying information, or 18 any other information protected from disclosure as described in Exhibit C shall 19 continue to be treated as confidential in accordance with this Order. 20 34. If the Receiving Party intends to file with the Court, use at a deposition, or otherwise 21 disclose a document to a nonparty (consistent with the terms of this Order), the Receiving Party shall 22 make a good faith effort to redact that document consistent with Exhibit C prior to such disclosure. After 23 such filing or other use, the Supplying Party shall have fifteen (15) days to provide the Receiving Party 24 with an amended copy of the document with any additional redactions it deems necessary pursuant to 25 Exhibit C. If an amended copy is provided, the Receiving Party will ensure that the original copy is 26 replaced with the amended copy in the court filing or deposition. 27 35. Each party shall retain all rights and remedies available to it under the law for the 28 enforcement of this Protective Order against anyone who violates it. 16 1 36. Nothing in this Protective Order shall be construed to prevent this Court from disclosing 2 any facts the Court relies upon in making any findings or issuing any ruling, order, judgment, or decree. 3 Within thirty (30) days of any information that has been claimed as Confidential Information 4 being de-designated or made publicly available, the Supplying Party shall provide notice of the 5 Confidential Information that has been de-designated and/or made publicly available. Such notice shall 6 be made by identifying bates numbers or by other means such as identifying categories of information 7 where the identification of bates numbers are not possible or not feasible. Publicly available includes 8 documents that have been filed with any court or entered as an exhibit during trial not under seal, 9 provided, however that the Supplying Party is not required to provide notice of de-designation with regard 10 to such documents until any motion or request to seal those documents is denied. This paragraph only 11 applies to the extent that the Supplying Party knew or should have known that the information claimed 12 as Confidential Information was de-designated or made publicly available. 13 14 Respectfully submitted this 7th day of November 2019. WETHERALL GROUP, LTD. GREENBERG TRAURIG, LLP By: /s/ Peter C. Wetherall PETER C. WETHERALL, ESQ. Nevada Bar No. 4414 pwetherall@wetherallgroup.com 9345 W. Sunset Road, Suite 100 Las Vegas, Nevada 89148 Telephone: (702) 838-8500 Facsimile: (702) 837-5081 By: /s/ Eric W. Swanis ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 swanise@gtlaw.com 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 15 16 17 18 19 20 CASEY SHPALL, ESQ. shpallc@gtlaw.com GREGORY R. TAN, ESQ. tangr@gtlaw.com GREENBERG TRAURIG, LLP 1144 15th Street, Suite 3300 Denver, Colorado 80202 Telephone: (303) 572-6500 21 Counsel for Plaintiff 22 23 24 25 Counsel for Defendants 26 27 28 17 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF NEVADA 3 4 ROBERT SINGER, 5 6 CASE NO. 2:19-cv-01579-JCM-VCF Plaintiff, v. 7 8 C. R. BARD, INC.; BARD PERIPHERAL VASCULAR, INCORPORATED, 9 Defendants. 10 11 ORDER 12 13 Based upon the Stipulated Protective Order filed concurrently herewith and GOOD CAUSE 14 APPEARING therefore, 15 IT IS HEREBY ORDERED that the meanings and provisions contained in the Stipulated 16 Protective Order concerning the use and/or disclosure of Confidential Information shall control all 17 documents produced pursuant to this Order and shall be effective as to all parties for the purposes of this 18 litigation. 19 20 IT IS SO ORDERED. Dated this 8th of November, 2019. 21 22 23 ___________________________________ Cam Ferenbach United States Magistrate Judge 24 25 26 27 28 18 EXHIBIT A 1 EXHIBIT A 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA 3 4 ROBERT SINGER, 5 6 CASE NO. 2:19-cv-01579-JCM-VCF Plaintiff, AGREEMENT TO MAINTAIN CONFIDENTIALITY v. 7 8 C. R. BARD, INC.; BARD PERIPHERAL VASCULAR, INCORPORATED, 9 Defendants. 10 11 12 I, ______________________ (Name), have been given and have read a copy of the Protective 13 Order, dated _______________, 20__ in the case of Robert Singer v. C. R. Bard, Inc., et al., Case 14 No. 2:19-cv-01579-JCM-VCF, pending in the United States District Court District of Nevada. 15 I understand and will strictly adhere to the contents of said Order. I understand that produced 16 material disclosed to me is subject to the Order of this Court and that I am prohibited from copying, 17 disclosing or otherwise using such material except as provided by said court Order. I understand that my 18 unauthorized disclosure of any “Confidential Information” or contact of a patient or reporter of an adverse 19 event may constitute contempt of court and I agree to be personally subject to the jurisdiction of this 20 Court for the purpose of enforcing my obligations under this Agreement, the Order, and any contempt 21 proceeding that may be instituted for my violation of the terms of this Agreement to Maintain 22 Confidentiality and the Protective Order. I also understand that my signature on this “Agreement to 23 Maintain Confidentiality,” indicating my agreement to be bound by the terms of this Protective Order, is 24 required before I may be allowed to receive and review any produced document and materials that are 25 designated as “Confidential Information.” 26 Date: ____________________ Print Signature: _________________________ 27 Signature: _____________________________ 28 19 Case 2:19-cv-01579-JCM-VCF Document 16-2 Filed 11/07/19 Page 1 of 3 EXHIBIT B Case 2:19-cv-01579-JCM-VCF Document 16-2 Filed 11/07/19 Page 2 of 3 1 EXHIBIT B 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT OF NEVADA 4 5 ROBERT SINGER, 6 7 CASE NO. 2:19-cv-01579-JCM-VCF Plaintiff, ACKNOWLEDGMENT OF DESTRUCTION OR RETURN OF CONFIDENTIAL INFORMATION v. 8 9 10 C. R. BARD, INC.; BARD PERIPHERAL VASCULAR, INCORPORATED, Defendants. 11 12 13 I, ______________________ (Name), am over the age of 18 years and am a resident of 14 ________________ County, _______________. I make this Declaration based upon my personal 15 knowledge, and I am competent to testify to the matters stated herein. 16 I have requested and received from _______________ all of the “Confidential Information” 17 contained in materials, transcripts, and other things within the scope of this Protective Order and 18 produced in this case, Robert Singer v. C. R. Bard, Inc., et al., Case No. 2:19-cv-01579-JCM-VCF, 19 pending in the United States District Court District of Nevada. 20 I have either destroyed or have attached hereto all of the “Confidential Information” contained in 21 the materials, transcripts, and other things within the scope of this Protective Order including those 22 materials which were returned to me by the experts and consultants mentioned above in accordance with 23 the preceding paragraph, and as described in the Protective Order related to this matter. Notwithstanding 24 the foregoing provisions of this paragraph, the Receiving Party may maintain its privileged 25 communications, work product, Confidentiality Agreements and Acknowledgments pursuant to the 26 Protective Order, materials required to be retained pursuant to the applicable law, and all court-filed 27 documents even though they contain “Confidential Information,” but such materials shall remain subject 28 to the terms of this Protective Order. 20 Case 2:19-cv-01579-JCM-VCF Document 16-2 Filed 11/07/19 Page 3 of 3 1 I declare under penalty of perjury under the laws of the ____________________________ that 2 the foregoing is true and correct. 3 4 Date: ___________________ Print Signature: _________________________ 5 Signature: _____________________________ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Case 2:19-cv-01579-JCM-VCF Document 16-3 Filed 11/07/19 Page 1 of 3 EXHIBIT C Case 2:19-cv-01579-JCM-VCF Document 16-3 Filed 11/07/19 Page 2 of 3 1 EXHIBIT C 2 Redaction Protocol 3 4 1) Redactions under the Health Insurance Portability Act of 1996 (HIPAA) and under 21 5 CFR 20.63, redact the following: 6 1) Redact the following for the patient, relatives, household members, or employers: 7 (1) 8 Names • (i.e., the subjects of the records) and of their relatives, employers, and household 9 members are redacted. Do not redact doctors, nurses, etc. for HIPAA. 10 11 (2) 12 13 County, City and Street address and last two digits of zip code • • 14 15 Names of the individuals associated with the corresponding health information (3) 16 DO NOT REDACT COUNTRY, STATE, OR FIRST THREE DIGITS OF ZIP CODE. Washington, DC is considered a state for HIPAA redaction purposes. Birthdates and dates of death • DO NOT REDACT THE YEAR 17 (4) Telephone numbers 18 (5) Fax numbers 19 (6) Email addresses 20 (7) Social security numbers (even if it is only a portion, or the full number but most is X’d out – redact it all) 21 22 (8) Medical record numbers, Accession Numbers, EMR (Electronic Medical Record 23 Number), PHR (Personal Health Record), PMR (Personal Medical Record), Clinical Trial 24 Record Numbers 25 (9) Health plan beneficiary numbers, Group Policy IDs, Policy Numbers, etc. (but not the name or address of insurance companies) 26 27 (10) Account numbers 28 (11) Certificate/license numbers 22 Case 2:19-cv-01579-JCM-VCF Document 16-3 Filed 11/07/19 Page 3 of 3 1 (12) Vehicle identifiers (license plate numbers, VINs, etc.) 2 (13) Serial numbers of devices 3 (14) URLs, folder paths, file locations (if they include anything like the patient ID, or the 4 patient’s employer) 5 (15) IP Addresses 6 (16) Biometric identifiers such as fingerprints, patient chart barcodes 7 (17) Full face images (not side profiles) 8 (18) Any other unique identifier 9 • This can include anything that is unique enough to identify the person “President 10 of the United States”, “current Provost of the University of Tennessee”, “first man 11 to walk on the moon”, “first heart transplant recipient” 12 NOT REDACTED: • 13 • 14 • 15 Bard Complaint IDs Information about a person who has been dead 50 years or more Autopsy reports 16 17 2) Redactions of Reporter Information - 21 CFR 20.63 18 The names, address (including city, state, and country), of any reporter (except if it is a Bard 19 Employee or FDA representative), including the names of: 20 (1) 21 Names of any doctor, nurse, intern, or employee of the reporter institution. This includes initials. 22 (2) Name of the hospital/institution. 23 (3) All geographic information including city, state, country, zip code, etc. 24 (4) Phone numbers, fax numbers, or pager numbers for the institution, doctor, etc. 25 (5) Email addresses, websites for the hospital, etc. 26 27 28 • • Bard Employees are not redacted because not considered voluntary reporters If reporter is an attorney or law firm subject to parties’ stipulation regarding redaction, do not redact the attorney/law firm as the reporter. 23
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