1 |} ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 2 || GREENBERG TRAURIG, LLP 3 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 A || Telephone: (702) 792-3773 Facsimile: (702) 792-9002 5 || Email: swanise @ gtlaw.com 6 Counsel for Defendants 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF NEVADA 9 || GEORGE CUSTER, CASE NO. 3:20-cv-00302-MMD-WGC 10 Plaintiff, 11 V. 12 C. R. BARD, INC.; BARD PERIPHERAL 13 || VASCULAR, INCORPORATED, Defendants. 15 STIPULATED PROTECTIVE ORDER 17 The Parties, through their respective counsel, stipulate to the entry of a protective orde 18 |/to govern the dissemination of documents, materials, and other information, including th 19 || substance and content thereof, designated by any party as confidential and produced by an 20 || party in support of motions, in response to written discovery, or during any formal or inform: 21 || discovery in this litigation subject to the terms as set forth below. 22 WHEREAS, the parties to this action, through their respective counsel, have agree 23 that a protective order preserving the confidentiality of certain documents and informatio 24 || should be entered by the Court. 25 26 27 W/// 28
1 THEREFORE, IT IS ORDERED as follows: 2 I. Definitions 3 1. Confidential Information. “Confidential Information” is defined herein as 4 any information that constitutes, reflects, discloses, or contains: (1) a “trade secret or other 5 confidential research, development, or commercial information” that is suitable for protection 6 under Federal Rule of Civil Procedure 26(c)(1)(G); and (2) information that may be protected 7 from disclosure under a party’s constitutional right of privacy such as confidential and private 8 psychiatric, psychological, medical condition and/or employment information. 9 2. Trade Secret. A party, in designating information “Confidential” because it 10 contains a “Trade Secret,” shall designate only information that meets the definition of trade 11 secret contained in 18 U.S.C. § 1839: 12 the term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering 13 information, including patterns, plans, compilations, program 14 devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or 15 intangible, and whether or how stored, compiled, or memorialized 16 physically, electronically, graphically, photographically, or in writing if – 17 (A) the owner thereof has taken reasonable 18 measures to keep such information secret; and 19 (B) the information derives independent 20 economic value, actual or potential, from not being 21 generally known to, and not being readily a scertainable through proper means by, the public. 22 23 3. This Action. “This Action” means George Custer v. C. R. Bard, Inc., et al., 24 Case No. 2:20-cv-00601-APG-BNW, pending in the United States District Court District of 25 Nevada. 26 / / / 27 / / / 28 / / / 1 II. Information Within the Scope of the Protective Order 2 4. This Protective Order shall govern all hard copy and electronic materials, the 3 information contained therein, and all other information produced or disclosed during This 4 Action, including all copies, excerpts, summaries, or compilations thereof, whether revealed 5 in a document, deposition, other testimony, discovery response or otherwise, by any party to 6 This Action or its representatives (the “Supplying Party”) to any other party or parties to This 7 Action or their representatives (the “Receiving Party”), whether provided voluntarily, 8 pursuant to formal discovery procedures, or otherwise. The Parties agree that confidentiality 9 of materials at trial will be determined by the Court after a separate briefing and/or argument 10 process. 11 5. The scope of confidentiality protections afforded under this Protective Order 12 does not include any trial exhibits or trial testimony entered into evidence during the case 13 known as Phillips v. C. R. Bard, Inc., et al., No. 3:12-cv-00344-RCJ-WGC (D. Nev. June 1, 14 2015), as to which that Court entered an Order denying Bard’s motion to seal trial exhibits 15 and trial transcripts. 16 In addition, this Protective Order does not apply to any document that was admitted 17 into evidence during the three MDL Bard IVC filter bellwether cases In Re: Bard IVC Filters 18 Products Liability Litigation, MDL 2641, listed in the MDL Court’s Suggestion of Remand 19 and Transfer Order (Second), Dkt. No. 3 (Exhibit 2 – Admitted Exhibit List from Bellwether 20 Trials and Documents No Longer Subject to Protective Order). To the extent only a portion 21 of a document was admitted, only that portion of the document that was admitted shall not be 22 subject to protection. 23 Notwithstanding the foregoing, this Protective Order does not address or alter whether 24 or not Defendants may argue that non-confidential documents should still be entitled to 25 protection under the work-product doctrine and/or the attorney-client communication 26 privilege. 27 / / / 28 / / / 1 III. Designating Information As “Confidential” Pursuant to This Protective Order 2 6. Documents. Any Supplying Party producing documents that contain 3 information that meets the definition of Confidential Information as provided in Paragraphs 1 4 and 2 herein, may designate the contents of the documents as “Confidential” prior to or at the 5 time of production by placing the following designation on the documents: 6 “CONFIDENTIAL – Subject to Protective Order.” Where a document consists of more than 7 one page, each page of the document shall be designated as such. Any document or 8 information for which it is impracticable or impossible to affix such a legend may be 9 designated by written notice to that effect with a reasonable description of the material in 10 question including a BATES number, where applicable. 11 7. Inspection. If a Supplying Party makes documents or information available for 12 inspection, rather than delivering copies to another party, no “Confidential” designation is 13 required in advance of the initial inspection. For the purposes of initial inspection only, the 14 documents shall be considered “CONFIDENTIAL.” Upon production of the inspected 15 documents, the Supplying Party shall designate which of the produced or copied documents 16 and materials are or contain Confidential Information pursuant to Paragraph 6 of this Order. 17 8. Written Discovery. If responses to written discovery contain Confidential 18 Information as defined in Paragraph 1 and 2 of this Protective Order, the Responding Party 19 may designate the responsive documents and information, as set forth in Paragraph 6, with 20 specific indication of the page and line references of the material that is “Confidential” under 21 the terms of this Protective Order. 22 9. Depositions. The parties may designate as Confidential any deposition 23 transcript, or portions thereof, in This Action that meets the definition of Confidential 24 Information provided in Paragraphs 1 and 2 of this Protective Order. Counsel for the 25 designating party shall advise the court reporter and the parties on the record during the 26 deposition or by letter no later than thirty (30) calendar days after the court reporter provides 27 the parties with the final deposition transcript. If any portion or all of a deposition transcript 28 is designated as Confidential Information, the court reporter shall label the cover page of the 1 original and one copy of the transcript to state that Confidential Information is contained 2 therein, and shall label as “Confidential” each page of the transcript and/or exhibits to the 3 deposition transcript that constitute “Confidential Information.” Confidential designations of 4 transcripts or portions thereof, apply to audio, video, or other recordings of the testimony. The 5 court reporter shall clearly mark any transcript or portion thereof prior to the expiration of the 6 30-day period as “DO NOT DISCLOSE – SUBJECT TO FURTHER CONFIDENTIALITY 7 REVIEW.” Deposition transcripts or portions thereof will be treated as Confidential 8 Information until expiration of the 30-day period. If any party does not designate the 9 transcript as “Confidential” either at the time of the deposition or within the 30-day period 10 defined above, no portion of the entire transcript will be deemed “Confidential” and the “DO 11 NOT DISCLOSE- SUBJECT TO FURTHER CONFIDENTIALITY REVIEW” legend shall 12 be removed. The 30-day period may not be extended without mutual agreement of the parties. 13 10. Confidential Information Produced by Third Parties. A party in This 14 Action may designate as Confidential any document, information, or testimony produced or 15 supplied by any person or entity not a party to This Action, that constitutes or meets the 16 definition of Confidential Information as defined in Paragraphs 1 and 2 of this Protective 17 Order. The party claiming confidentiality shall designate the information as such within thirty 18 (30) days of its receipt of such information. Any party receiving information from a third 19 party shall treat such information as Confidential Information during this thirty (30) day 20 period while all parties have an opportunity to review the information and to determine 21 whether it should be designated as confidential. Any party designating third party information 22 as Confidential Information shall have the same rights, duties, and obligations, as a Supplying 23 Party under this Protective Order. 24 11. Publicly Available Information. The confidentiality restrictions and 25 confidentiality obligations set forth herein shall not apply to information that is at the time of 26 production or disclosure, or subsequently becomes, through no wrongful act on the part of the 27 Receiving Party, generally available to the public through publication or otherwise. This 28 includes information published during public hearings and trials, if the Supplying Party does 1 not move to seal or appeal any order denying such motion to seal within the time permitted 2 under the applicable rules. Notwithstanding the foregoing, this Protective Order does not 3 address or alter whether or not Defendants may argue that non-confidential documents should 4 still be entitled to protection under the work-product doctrine and/or the attorney-client 5 communication privilege. 6 IV. Limitations on Use of Confidential Information 7 12. All Confidential Information shall be used for the purpose of this lawsuit only, 8 and except as permitted by this Order, the parties and their respective attorneys, as well as 9 experts or consultants, shall not give, show, or otherwise divulge or disclose the Confidential 10 Information, or any copies, prints, negatives or summaries thereof to any person or entity. 11 Notwithstanding the foregoing provisions of this paragraph, nothing in this Order shall 12 prevent the use of any of the documents or electronically stored information (“ESI”) produced 13 pursuant to this Protective Order in other actions brought by the plaintiff’s counsel, so long 14 as a comparable protective order is entered in those other actions. 15 13. Confidential Information pursuant to this Protective Order shall be treated by 16 the parties, their counsel, and any other signatory to this Protective Order as being confidential 17 and private. Any copy of Confidential Information shall have the same status as the original. 18 The disclosure and use of Confidential Information shall be confined to the permissible 19 disclosures and uses set forth in this Protective Order, and no one shall disclose or use 20 Confidential Information in a manner inconsistent with the terms and the intent of this 21 Protective Order. 22 14. Confidential Information may be disclosed only to the following persons and 23 shall be used solely for the litigation of This Action and may not be disclosed to anyone not 24 authorized under this paragraph: 25 a. Parties, their representatives, in-house counsel and regular 26 employees who are actively engaged in, or actively overseeing This Action; 27 b. Counsel of record, their associated attorneys, and support staff, 28 including paralegal and secretarial personnel who are working on This Action; 1 c. Experts and consultants (including their employees/contractors) 2 who are consulted or retained by a party to assist in the litigation of This Action; 3 d. Third-party contractors and their employees who are consulted or 4 retained by one or more parties to provide litigation-support or copy services in 5 connection with the litigation of This Action 6 e. Witnesses or prospective witnesses in This Action; 7 f. Court reporters, videographers, and other persons involved in 8 recording deposition testimony in This Action; 9 g. The Court and its personnel, including any mediators and/or 10 special masters appointed by the Court, or if an appeal, the court with appellate 11 jurisdiction; and 12 h. Jurors in This Action. 13 15. Prior to the disclosure of any Confidential Information to any person identified 14 in Paragraph 14 above (except the Court and its personnel and jurors in This Action), the 15 disclosing party will provide each potential recipient of Confidential Information with a copy 16 of this Protective Order, which said recipient shall read. Upon reading this Protective Order, 17 such person shall sign an Agreement to Maintain Confidentiality (“Confidentiality 18 Agreement”), attached to this Order as Exhibit A, acknowledging that he or she has read this 19 Protective Order and shall abide by its terms. Notwithstanding the foregoing provision, 20 Confidential Information may be disclosed to a witness who will not sign an Confidentiality 21 Agreement in a deposition at which the party who has designated the Confidential Information 22 is represented or has been given notice that Confidential Information produced by the party 23 may be used. These Confidentiality Agreements are strictly confidential and shall be 24 maintained by counsel for each party and only with good cause shown and separate court 25 order will the Confidentiality Agreements be disclosed to the opposing side. Persons who 26 come into contact with Confidential Information for clerical or administrative purposes, and 27 who do not retain copies or extracts thereof, are not required to execute Confidentiality 28 Agreements but must comply with the terms of this Protective Order. 1 16. All persons receiving or given access to Confidential Information in accordance 2 with the terms of this Order consent to the continuing jurisdiction of this Court for the 3 purposes of enforcing this Order and remedying any violations thereof. 4 17. Confidential Information shall not be placed or deposited in any sort of data 5 bank that is made available for indiscriminate or general circulation to lawyers, litigants, 6 consultants, expert witnesses or any other persons not working on This Action and not 7 signatories to this Protective Order. This paragraph and the other provisions of this Order 8 shall not apply to materials which, if challenged by any party, the Court rules are not entitled 9 to protection. This paragraph does not limit or restrict in any way the manner in which a party 10 may store and make Confidential Information available to the attorneys, support staff, experts, 11 and any other persons or entities working on This Action, provided the general terms of this 12 Order are followed. 13 18. The parties and their counsel as well as their technical consultants and experts 14 shall also not sell, offer, advertise, publicize nor provide under any condition any Confidential 15 Information produced by any other party to any competitor of any defendant or to any 16 employee or any competitor (irrespective of whether they are retained as an expert by a party 17 in This Action). 18 19. In the event that either of the parties is served by a non-party with a subpoena 19 for Confidential Information that was originally provided and claimed as Confidential by 20 another party, the Receiving Party will give notice to the Supplying Party, where reasonably 21 possible, no less than ten (10) business days prior to disclosure by providing a copy of the 22 subpoena, to allow a reasonable opportunity for the Supplying Party to object to such 23 production before any production takes place. 24 20. If a Receiving Party learns of any unauthorized disclosure of Confidential 25 Information, it shall take reasonable efforts to immediately (a) inform the Supplying Party in 26 writing of such disclosure, including to whom the material was disclosed; (b) make a 27 reasonable effort to retrieve all copies of the Confidential Information only to the extent the 28 Receiving Party has control over the unauthorized disclosed documents; (c) and to the extent 1 the Receiving party has control over the person or persons to whom unauthorized disclosures 2 were made, inform the persons of the terms of this Protective Order. 3 V. Changes in and Objections to Designation of Information 4 21. “Clawback” of Irrelevant Confidential Information. If a Supplying Party 5 produces any document containing Confidential Information that they identify to the 6 Receiving Party as irrelevant, the Supplying Party may notify the Receiving Party of the 7 Irrelevant Confidential Information in writing. If a portion of the document contains 8 information relevant to This Action, the Supplying Party shall also supply the Receiving Party 9 with a new copy of the document which shall be substituted for the earlier produced document. 10 Upon receipt of the substitute document, the Supplying Party shall promptly return or destroy 11 the earlier produced document. Upon receipt of the Supplying Party’s written notice, the 12 Receiving Party shall, within a reasonable time, not exceed twenty (20) days, (a) treat such 13 material in accordance with this Order; (b) take reasonable steps to notify any person to whom 14 the Receiving Party disclosed such information of the new confidential designation; (c) take 15 reasonable steps to procure the return of all copies of such material from any such persons 16 who are not entitled to receipt of Confidential Information under the terms of this Protective 17 Order; (d) request in writing that such person procure the return of such information from any 18 person to whom such person may have disclosed the information. 19 22. Challenges to Designation of Confidential Information. A Receiving Party 20 may challenge a Supplying Party’s designation or re-designation by notifying the Supplying 21 Party in writing that the confidentiality designation does not meet the definition of 22 “Confidential Information.” The designation by any party of Confidential Information raises 23 no presumption that the information or documents are entitled under the law to protection. If 24 any party contends, in writing, that any document, material, ESI, or other thing has been 25 erroneously designated as Confidential Information, the party who designated the information 26 as Confidential Information shall initiate a meet and confer within ten (10) days with the 27 opposing party and the parties shall make a good faith effort to resolve issues relating to such 28 designations. After the meet and confer, the party who designated the information as 1 Confidential Information shall file a motion with the Court within thirty (30) days of receiving 2 such written notification establishing that the information is entitled to protection as 3 Confidential Information under the law. If the designating party fails to timely file such a 4 motion within the allotted thirty (30) day period, the document, ESI, material, or other thing, 5 which is designated as Confidential Information, shall forthwith be produced and be deemed 6 not to be Confidential Information. Any information or thing being challenged as 7 inappropriately designated as Confidential Information shall nonetheless be treated as 8 Confidential Information unless and until either (a) the designating party gives written 9 permission to do otherwise, (b) the designating party fails to file a motion establishing that 10 the challenged material is subject to protection as Confidential Information under the law 11 within the thirty (30) day time period, or (c) the Court rules that the document, material, ESI, 12 or other thing shall not be treated as confidential. Should the Court rule that any item 13 designated as Confidential Information is not entitled to protection under the law, the 14 designating party shall, within fourteen (14) days after all appeals are exhausted, provide the 15 party challenging the confidential designation with copies of each item free of any language 16 indicating that the item is subject to a Protective Order. A Receiving Party shall only challenge 17 documents under this Paragraph that they have a good faith basis for using in This Action. 18 23. Nothing in this Protective Order shall be deemed to shift the burden of proof to 19 the party challenging the confidential designation with regard to whether the materials 20 produced pursuant to this Protective Order are entitled to protection under the law as 21 Confidential Information. 22 VI. Filing Under Seal 23 24. Where a Party Files Documents and Contends the Documents Should be 24 Kept Sealed. Where a party intends to file documents that contain Confidential Information 25 with the Court, said party must file a motion for an order sealing the documents consistent 26 with applicable law and comply with the provisions of FRCP 5.2 and LR IC 6-1 of the local 27 rules. A copy of the motion must be served on all parties that have appeared in the case. 28 / / / 1 25. Where a Party Files Documents Claimed as Confidential by Another Party. 2 A party that files or intends to file with the Court Confidential Information produced by 3 another party but does not intend to request to have the records sealed, must do the following: 4 a. Make arrangements consistent with FRCP 5.2 and LR IC 6-1 of 5 the local rules to lodge the documents under seal. 6 b. File redacted copies of the documents (if appropriate) so that they 7 do not disclose the contents of the records that are subject to the confidentiality 8 agreement or protective order; 9 c. Serve a copy of the motion on all parties that have appeared in the 10 case; and 11 d. Give written notice to the party that produced the documents that 12 the documents will be placed in the public court file unless the party files a 13 timely motion to seal records. 14 If the party that produced the Confidential Information and was served with the 15 abovementioned notice fails to file a motion to seal the records within fifteen (15) days of 16 receipt of the notice referenced in Subparagraph 25.d. or to obtain a court order extending the 17 time to file such motion, the clerk must promptly remove all the documents filed under seal 18 pursuant to this provision from the envelope or container where they are located and place 19 them in the public file. If the party files a motion or an application to seal within fifteen (15) 20 days of receipt of the notice referenced in Subparagraph 25.d. days or such later time as the 21 Court has ordered, these documents are to remain conditionally under seal until the Court 22 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 24 exhibits at the trial of this matter. The Supplying Party reserves the right, however, to petition 25 the Court for protection with respect to such documents admitted into evidence as exhibits at 26 trial. 27 / / / 28 / / / 1 VII. Miscellaneous Provisions 2 26. Amending or Modifying Protective Order. By written agreement of the 3 parties, or upon motion and order of the Court, the terms of this Protective Order may be 4 amended or modified. This Protective Order shall continue in force until amended or 5 modified by consent or agreement of the parties or by order of the Court, and shall survive 6 any final judgment or settlement in This Action, including but not limited to any final 7 adjudication of any appeals petitions for extraordinary writs, unless otherwise vacated or 8 modified by the Court. The Court shall have continuing jurisdiction over the terms and 9 provisions of this Protective Order. 10 27. After Final Adjudication. Upon written demand by the Supplying Party made 11 within thirty (30) days after final adjudication of This Action, including but not limited to, 12 any final adjudication of any appeals and petitions for extraordinary writs, the Receiving Party 13 shall assemble and return all Confidential Information to the Supplying Party or, alternatively, 14 shall destroy all such material at the Supplying Party’s expense. The Receiving Party shall 15 verify the complete destruction or return to the Supplying Party all such Confidential 16 Information by executing and mailing to counsel for the Supplying Party an Acknowledgment 17 in the form attached hereto as Exhibit B. A copy of each such executed Acknowledgment 18 shall be maintained by counsel for the Receiving Party and counsel for the Supplying Party. 19 Notwithstanding the foregoing provisions of this paragraph, the Receiving Party may 20 maintain its privileged communications, work product, Confidentiality Agreements and 21 Acknowledgments pursuant to the Protective Order, materials required to be retained pursuant 22 to applicable law, and all court-filed documents even though they contain Confidential 23 Information, but such materials shall remain subject to the terms of this Protective Order. 24 This provision may not be invoked while the plaintiff’s attorneys of record have active 25 pending cases relating to IVC Filters manufactured by C. R. Bard, Inc. and/or Bard Peripheral 26 Vascular, Inc. 27 28. The terms of this Protective Order do not preclude, limit, restrict, or otherwise 28 apply to the use of Confidential Information at trial. The use of Confidential Information 1 during trial will be addressed in a later agreement between the parties, or, if they cannot reach 2 an agreement, by further order of the Court. 3 29. Nothing in this Order shall be deemed a waiver of any parties’ right to oppose 4 any motion by any other party for a protective order or to oppose any objection to the 5 disclosure of any information or documents on any legal grounds, including, but not limited 6 to, the grounds that the party seeking the protective order has neither timely nor adequately 7 objected to disclosure of such documents and information or moved for a protective order. 8 30. This Protective Order does not relieve any party of its obligations to respond to 9 otherwise proper discovery in This Action. Nothing contained in this Order, or any action 10 taken pursuant to it shall waive or impair any party’s right to assert claims of privilege or 11 work product protection, or the right of any party to object to the relevancy of admissibility 12 of documents or information sought or produced into assert objections to requested discovery 13 on grounds other than Confidential Information. This Protective Order also shall not affect 14 or create any presumption with respect to the right of any party from seeking or obtaining 15 additional protection with respect to any documents, materials, or information where allowed 16 by law. 17 31. Electronically Stored Information (“ESI”) Document Production Review 18 Process. To expedite document production of ESI from Defendants, the parties, through 19 their respective counsel, have agreed to a primarily “no-eyes-on” document production as to 20 relevancy while still performing a privilege review for ESI which Defendants will be 21 producing subsequent to this Protective Order. The Parties recognize that a substantial portion 22 of the documents that will be produced in This Action were initially produced in In re: Bard 23 IVC Filters Products Liability Litigation, MDL No. 2641, in the United States District Court 24 District of Arizona (“IVC Filter MDL”), pursuant to a “no-eyes-on” document production as 25 to relevancy in order to expedite production in the MDL. As a result, the Receiving Party 26 agrees to make a good faith effort to apply the terms of this Protective Order consistent with 27 that production. The Parties further agree that any additional document productions in This 28 / / / 1 Action may be made pursuant to this “no-eyes-on” review/ESI production process (the 2 “Process”). 3 32. The Parties and their counsel agree to the entry of the Protective Order in This 4 Action, and to the Process, which shall govern the production of documents, materials, and 5 other information, including the substance and content thereof; and use of any such 6 documents, materials, and other information during discovery, in conjunction with court 7 filings or hearings, during any other pre-trial activity, and during trial. The Parties and their 8 counsel have also agreed that all ESI produced by Defendants pursuant to the Process will be 9 subject to the following terms: 10 a. At the time of production, Defendants will identify the documents 11 or ESI as being produced pursuant to the Process and subject to the restrictions 12 of this Paragraph (the “Process ESI”). 13 b. Nothing in this Protective Order shall prevent the use of any 14 Process ESI in other actions brought by the Plaintiff’s counsel, so long as a 15 substantially comparable protective order is entered in those other actions. 16 c. Prior to using any document or ESI from the Process ESI as part 17 of a filing, at a deposition, or at a trial or hearing in this matter, Plaintiffs shall 18 make a good faith effort to identify whether the document or ESI contains any 19 information that is subject to redaction under Paragraphs 33-34 (“Redaction 20 Requirements”) of this Protective Order and corresponding Exhibit C 21 (“Redaction Protocol”) and to redact any such information in accordance with 22 this Order and redaction protocol. 23 d. Defendants shall independently have the right to identify any 24 documents or ESI from the Process ESI, including documents identified by 25 Plaintiffs pursuant to Subparagraph 32.c. above, as subject to the Redaction 26 Requirements and Redaction Protocol and to require the redaction of the 27 information set forth therein; in that event, Defendants shall provide Plaintiffs 28 with a redacted version of the subject documents or ESI with the same 1 production Bates number(s) and Plaintiffs shall destroy any unredacted copies 2 or versions of the document that they possess. 3 e. Defendants shall have the right to identify any document, file, or 4 other form of ESI produced pursuant to the Process as both being irrelevant to 5 the matters in dispute in this case and containing trade secret or other 6 confidential information and to “claw back” such ESI or documents from the 7 production. After Plaintiffs use a document or ESI from the Process ESI as part 8 of a filing, at a deposition, or at a trial or hearing in this matter, Defendants shall 9 have 30 days to seek claw back of the particular document pursuant to this 10 Paragraph; this latter requirement does not apply to Process ESI that has not been 11 used by Plaintiffs as part of a filing, at a deposition, or at a trial or hearing in this 12 matter, which may be clawed back at any time. 13 f. Plaintiffs shall have the right to challenge any designation or claw 14 back by Defendants under Subparagraphs 32.d. or 32.e. above by submission of 15 the ESI or document to the Court under seal, and any filings that refer to the 16 protected substance of the ESI or document must, likewise, be made under seal. 17 g. Non-Waiver of Privilege 18 i. The production in This Action, use in This Action, or any 19 other disclosure in This Action of the substance or content of documents, 20 materials, or other information that is protected by the attorney-client 21 privilege, work-product protection, or any other privilege or protection 22 shall not amount to waiver of the privilege and/or protection in This 23 Action, or in any other federal or state proceeding, and Plaintiff and 24 Plaintiff’s counsel stipulate that they will not argue in any other action or 25 proceeding, whether in federal or state court, that the production, use, or 26 other disclosure of such documents, materials, or other information in 27 This action constitutes waiver of the privilege or protection. 28 / / / 1 ii. If the Receiving Party identifies a document, material, or 2 other information that reasonably appears to be protected by any privilege 3 or other protection, they shall promptly notify the Supplying Party in 4 writing. If the Supplying Party determines that the document, material, 5 or other information is privileged or otherwise protected, it shall make 6 such an assertion in writing within 30 days of receipt of notification. 7 After being notified, the Receiving Party must promptly return, sequester, 8 or destroy the specified information and any copies it has; must not use 9 or disclose the information until the claim is resolved; must take 10 reasonable steps to retrieve the information if the party disclosed it before 11 being notified; and may promptly present the information to the court 12 under seal for a determination of the claim. Failure to assert the privilege 13 or protection within 30 days of receipt of notification shall amount to 14 waiver of any privilege or protection only of the document, material, or 15 other information identified in the notification. 16 Unless waived under subsection (ii) above, at any time, a party that produces 17 any document, material, or other information that it believes to be protected by the 18 attorney-client privilege, work-product protection, or any other privilege or protection 19 may assert the privilege or protection in writing. After being notified, the Receiving 20 Party must promptly return, sequester, or destroy the specified information and any 21 copies it has; must not use or disclose the information until the claim is resolved; must 22 take reasonable steps to retrieve the information if the party disclosed it before being 23 notified; and may promptly present the information to the court under seal for a 24 determination of the claim. 25 h. To the extent that the documents or ESI produced pursuant to the 26 Process contain any adverse event reporter names or information of a patient 27 who is not a party to this litigation and which would otherwise be redacted in 28 accordance with the Redaction Requirements of this Protective Order, Plaintiffs 1 and their counsel and agents shall not contact the patient or reporter of an adverse 2 event unless and until the parties go through the processes outlined in 3 Subparagraphs 32.e. and 32.g. above with respect to redaction of information 4 and this Court determines the information is not subject to redaction. 5 33. Redaction of Adverse Event Reporter, HIPAA, and Other Information 6 Pursuant to Exhibit C. Defendants have produced in the IVC Filter MDL and may produce 7 in This Action additional and updated adverse event reports and complaint files maintained 8 pursuant to 21 U.S.C. § 360i, 21 C.F.R. § 803.18 and 21 C.F.R. § 820.1-.250, as well as 9 documents relating to those adverse events and complaint files. To the extent that Defendants 10 are able to identify whether these reports and complaint files relate to the Plaintiff at the time 11 they are produced in This Action, the parties and their respective counsel have consented to 12 and agreed that the Defendants shall refrain from redacting identifiable information of the 13 Plaintiff in this litigation, pursuant to 21 C.F.R. § 20.63(f)(1)(iii). Otherwise, in accordance 14 with 21 C.F.R. § 20.63(f) and other applicable laws, statutes, and regulations, the Defendants 15 shall only redact such information as is set forth in the agreed Redaction Protocol attached to 16 this Protective Order as Exhibit C, and Plaintiff shall have the right to object to any redactions 17 made. 18 The parties acknowledge that this Stipulated Order is intended to and does satisfy the 19 written consent requirement of the federal regulations. 20 a. Any documents containing any reporter or personal identifying 21 information shall be designated and branded as confidential in accordance with 22 this Order. To the extent that any adverse event reporter information or patient 23 information belonging to any individual or entity who is not a party to this 24 litigation is disclosed, because such information is not required to be redacted in 25 accordance with this Protective Order (see Paragraph 29-30), the Receiving 26 Party and their counsel and agents shall not contact the patient or reporter 27 involved in an adverse event. 28 / / / 1 b. Any additional documents or ESI Defendants produce in This 2 Action will be produced subject to this Order and marked Confidential. Thus, 3 any documents or ESI containing any adverse event reporter, personal 4 identifying information, or any other information protected from disclosure as 5 described in Exhibit C shall continue to be treated as confidential in accordance 6 with this Order. 7 34. If the Receiving Party intends to file with the Court, use at a deposition, or 8 otherwise disclose a document to a nonparty (consistent with the terms of this Order), the 9 Receiving Party shall make a good faith effort to redact that document consistent with 10 Exhibit C prior to such disclosure. After such filing or other use, the Supplying Party shall 11 have fifteen (15) days to provide the Receiving Party with an amended copy of the document 12 with any additional redactions it deems necessary pursuant to Exhibit C. If an amended copy 13 is provided, the Receiving Party will ensure that the original copy is replaced with the 14 amended copy in the court filing or deposition. 15 35. Each party shall retain all rights and remedies available to it under the law for 16 the enforcement of this Protective Order against anyone who violates it. 17 36. Nothing in this Protective Order shall be construed to prevent this Court from 18 disclosing any facts the Court relies upon in making any findings or issuing any ruling, order, 19 judgment, or decree. 20 37. Within thirty (30) days of any information that has been claimed as Confidential 21 Information being de-designated or made publicly available, the Supplying Party shall 22 provide notice of the Confidential Information that has been de-designated and/or made 23 publicly available. Such notice shall be made by identifying bates numbers or by other means 24 such as identifying categories of information where the identification of bates numbers are 25 not possible or not feasible. Publicly available includes documents that have been filed with 26 any court or entered as an exhibit during trial not under seal, provided, however that the 27 Supplying Party is not required to provide notice of de-designation with regard to such 28 documents until any motion or request to seal those documents is denied. 1 This paragraph only applies to the extent that the Supplying Party knew or should have 2 known that the information claimed as Confidential Information was de-designated or made 3 publicly available. 4 5 Respectfully submitted this 22nd day of May 2020. 6 MCSWEENEY LANGEVIN, LLC GREENBERG TRAURIG, LLP 7 By: /s/ David M. Langevin By: /s/ Eric W. Swanis 8 DAVID M. LANGEVIN, ESQ.* ERIC W. SWANIS, ESQ. *Pro Hac Vice Application to be Filed Nevada Bar No. 6840 9 dave@westrickeback.com swanise@gtlaw.com 10 RHETT A. MCSWEENEY, ESQ. 10845 Griffith Peak Drive RAM@westrickeback.com Suite 600 11 2116 Second Avenue South Las Vegas, Nevada 89135 12 Minneapolis, Minnesota 55404 Tel: (702)792-3773 Tel: (612)746-4646 13 Counsel for Defendants KRISTIE L. FISCHER 14 Nevada Bar No. 11693 15 2565 Coral Sky Court Las Vegas, Nevada 89142 16 fischer.kristie@gmail.com 17 (702) 218-0253 18 Counsel for Plaintiff 19 ORDER 20 21 Paragraph 24 is modified to reflect that any motion regarding filing confidential information and motions to seal shall comply with LR IA 10-5 and the requirements of Kamakana v. City and 22 County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). See also, Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016). 23 24 IT IS SO ORDERED. 25 Dated this 26th of May, 2020. 26 27 ___________________________________ William G. Cobb 28 United States Magistrate Judge EXHIBIT A ° IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA GEORGE CUSTER, 6 Plaintiff, , y CASE NO. 3:20-cv-00302-MMD-WGC
8 || C. R. BARD, INC.; BARD PERIPHERAL 9 VASCULAR, INCORPORATED, 10 Defendants. 11 12 I, _____ (Name), have been given and have read a copy of th eee 13 || Protective Order, dated ____, 20__ in the case of George Custer v. C. R. Bare 14 || Inc., et al., Case No. 2:20-cv-00601-APG-BNW, pending in the United States District Cou 15 || District of Nevada. 16 I understand and will strictly adhere to the contents of said Order. I understand th: 17 || produced material disclosed to me is subject to the Order of this Court and that I am prohibite 18 || from copying, disclosing or otherwise using such material except as provided by said cou 19 ||Order. I understand that my unauthorized disclosure of any “Confidential Information” « 20 □□ contact of a patient or reporter of an adverse event may constitute contempt of court and 21 || agree to be personally subject to the jurisdiction of this Court for the purpose of enforcing m 22 obligations under this Agreement, the Order, and any contempt proceeding that may t 23 instituted for my violation of the terms of this Agreement to Maintain Confidentiality and th 24 Protective Order. I also understand that my signature on this “Agreement to Maintai 25 || Confidentiality,” indicating my agreement to be bound by the terms of this Protective Orde: 26 |f/// 27 \\/// 28 |f///
1 is required before I may be allowed to receive and review any produced document and 2 materials that are designated as “Confidential Information.” 3 Date: ____________________ Print Signature: _________________________ 4 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 EXHIBIT B ° IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA ‘ GEORGE CUSTER, ° Plaintiff, 6 y CASE NO. 3:20-CV-00302-MMD-WGC 7 . g || C.R. BARD, INC.; BARD PERIPHERAL POOTRUCTION OR RETURN OF 9 VASCULAR, INCORPORATED, CONFIDENTIAL INFORMATION 10 Defendants. 11 12 _____ (Name), am over the age of 18 years and am a residet 13 || of County, . I make this Declaration based upon m sibs 14 || personal knowledge, and I am competent to testify to the matters stated herein. 15 I have requested and received from _____ all of the “Confidenti: 16 || Information” contained in materials, transcripts, and other things within the scope of th: 17 || Protective Order and produced in this case, George Custer v. C. R. Bard, Inc., et al., Case Nc 18 || 2:20-cv-00601-APG-BNW, pending in the United States District Court District of Nevada. 19 I have either destroyed or have attached hereto all of the “Confidential Information 20 □□ contained in the materials, transcripts, and other things within the scope of this Protectiv 21 || Order including those materials which were returned to me by the experts and consultant 22 ||mentioned above in accordance with the preceding paragraph, and as described in th 23 ||Protective Order related to this matter. Notwithstanding the foregoing provisions of th 24 || paragraph, the Receiving Party may maintain its privileged communications, work produc 25 ||Confidentiality Agreements and Acknowledgments pursuant to the Protective Orde 26 || materials required to be retained pursuant to the applicable law, and all court-filed documen 27 |I/// 28
1 even though they contain “Confidential Information,” but such materials shall remain subject 2 to the terms of this Protective Order. 3 I declare under penalty of perjury under the laws of the state of Nevada that the 4 foregoing is true and correct. 5 6 Date: ___________________ Print Signature: _________________________ 7 8 Signature: _____________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT C 2 Redaction Protocol 3 1) Redactions under the Health Insurance Portability Act of 1996 (HIPAA) an 4 || under 21 CFR 20.63, redact the following: 5 6 || 1) Redact the following for the patient, relatives, household members, or employer: 7 (1) Names 8 ° Names of the individuals associated with the corresponding healt 9 information (1.e., the subjects of the records) and of their relative 10 employers, and household members are redacted. Do not redact doctor 11 nurses, etc. for HIPAA. 12 (2) County, City and Street address and last two digits of zip code 13 ° DO NOT REDACT COUNTRY, STATE, OR FIRST THREE DIGIT 14 OF ZIP CODE. 15 ° Washington, DC is considered a state for HIPAA redaction purposes. 16 (3) Birthdates and dates of death 17 ° DO NOT REDACT THE YEAR 18 (4) Telephone numbers 19 (5) Fax numbers 20 (6) | Email addresses 71 (7) Social security numbers (even if it is only a portion, or the full number but mo: 2 is X’d out — redact it all) 23 (8) Medical record numbers, Accession Numbers, EMR (Electronic Medic: 24 Record Number), PHR (Personal Health Record), PMR (Personal Medics 25 Record), Clinical Trial Record Numbers 26 (9) Health plan beneficiary numbers, Group Policy IDs, Policy Numbers, etc. (bt 7 not the name or address of insurance companies) 28 (10) Account numbers
1 (11) Certificate/license numbers 2 (12) Vehicle identifiers (license plate numbers, VINs, etc.) 3 (13) Serial numbers of devices 4 (14) URLs, folder paths, file locations Gf they include anything like the patient IL 5 or the patient’s employer) 6 (15) IP Addresses 7 (16) Biometric identifiers such as fingerprints, patient chart barcodes 8 (17) Full face images (not side profiles) 9 (18) Any other unique identifier 10 ° This can include anything that is unique enough to identify the perso 1] “President of the United States,” “current Provost of the University « 12 Tennessee,” “first man to walk on the moon,” “first heart □□□□□□□□□ 13 recipient” || NOT REDACTED: 15 ° Bard Complaint IDs 16 e Information about a person who has been dead 50 years or more 17 ° Autopsy reports 18 19 2) Redactions of Reporter Information - 21 CFR 20.63 The names, address (including city, state, and country), of any reporter (except if it □ I a Bard Employee or FDA representative), including the names of: (1) Names of any doctor, nurse, intern, or employee of the reporter institution. Th: °° includes initials. 24 (2) Name of the hospital/institution. (3) All geographic information including city, state, country, zip code, etc. *° (4) | Phone numbers, fax numbers, or pager numbers for the institution, doctor, etc (5) | Email addresses, websites for the hospital, etc.
1 e Bard Employees are not redacted because not considered voluntat 2 reporters 3 e If reporter is an attorney or law firm subject to parties’ stipulatio 4 regarding redaction, do not redact the attorney/law firm as the reporter 5 6 7 8 9 10 11 12
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