The opinion
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
CHESTER E. BATES, )
Plaintiff,
v. ) Case No. 4:20-CV-813-DPM
WRIGHT MEDICAL TECHNOLOGY, INC.,
) JURY TRIAL DEMANDED
Defendant. )
PROTECTIVE ORDER
The Court enters this Order pursuant to Federal Rule of Civil Procedure 26 to protect the
specific and serious trade secret or other confidential research, development, or commercial
information and confidentiality interests of the Parties to the above-captioned matter as well as
any third parties from whom information is sought in this matter, and to expedite discovery without
delay caused by possible disputes regarding claims of confidentiality of information, documents
and things that may contain or constitute trade secrets, confidential research and development, and
any commercial, financial or other proprietary information.
IT IS HEREBY ORDERED, pursuant to Federal Rule of Civil Procedure 26, that:
I. SCOPE OF PROTECTIVE ORDER
1.01 Scope of Order.
This Order shall apply to discovery initiated by any of the parties to one or more other
parties or to any third parties and shall apply to all information, documents, electronically stored
information (“ESI”), and things in the possession of or under the control of any party or third party
subject to discovery in this action. This Order shall further govern the production of documents
and information supplied in this case in any form by a party and designated by that producing party
as embodying “Confidential” or “Attorneys’ Eyes Only” material for purposes of discovery or
otherwise. This Order also governs the Parties’ agreement for access to documents from JCCP
4710: Wright Hip System Cases, pending before Judge Ann Jones in the Superior Court of
California, Los Angeles County (the “JCCP”). Per the Parties’ written agreement on access to the
JCCP materials, the parties have agreed that those materials are also still governed by—and that
they agree to follow—any and all protective orders from the JCCP. In the event of a conflict
between protective orders entered in this action and in the JCCP as it pertains to JCCP materials,
the parties will meet and confer and make good faith efforts to reach a resolution in the interest of
efficiency and cost savings.
Il. PROCEDURES FOR PROTECTION OF CONFIDENTIAL AND
ATTORNEYS’ EYES ONLY INFORMATION
2.01 “Confidential” and “Attorneys’ Eyes Only” Information Defined.
“Confidential” material shall include any non-public material that any Party or third party
reasonably and in good faith believes contains or reveals trade secrets; confidential research,
development or commercial information, including but not limited to inspections of premises or
things; or other proprietary or sensitive information or know-how that derives its value from
secrecy, or such material the public disclosure of which would cause any Party, or third parties
identified therein, undue annoyance or embarrassment. The scope of this Order shall include all
copies, excerpts, summaries, or notes that are prepared or derived therefrom and that incorporate
or reflect information contained in any Confidential Material, as well as testimony and oral
conversations derived therefrom or related thereto.
This litigation may also require a Party or third party to produce documents, testimony, or
other material that is highly confidential. This may include materials containing particularly
sensitive trade secrets or other nonpublic confidential technical, commercial, financial, personal,
or business information that requires protection beyond that afforded by a “Confidential”
designation. In order to adequately protect such highly confidential material, by limiting access
to the same, a producing party may designate such material as “Attorneys’ Eyes Only.”
The scope of this Order shall further allow either Plaintiff or Defendant to this action to
designate materials produced by any third parties as “Confidential” or “Attorneys’ Eyes Only,” as
defined by the terms of this Order, that the Designating Party reasonably and in good faith believes
contains or reveals trade secrets; confidential research, development or commercial information,
including but not limited to inspections of premises or things; or other proprietary or sensitive
information or know-how that derives its value from secrecy, or such material the public disclosure
of which would cause the Designating Party, or third parties identified therein, undue annoyance
or embarrassment.
2.02 Designation of Confidential and Attorneys’ Eyes Only Information.
Each deposition transcript page or portion thereof, each interrogatory answer or portion
thereof, each produced document or portion thereof, and each premise or thing or portion thereof
which is deemed by any Party to disclose (1) confidential information (hereinafter “Confidential
Information”), will be identified and labeled as “CONFIDENTIAL;” or (2) attorney’s eyes only
information (hereinafter “Attorneys” Eyes Only Information’), will be identified and labeled as
“ATTORNEYS’ EYES ONLY.”
Such identification and marking shall be made at the time when the Producing Party
provides responses, documents, inspections, or things that it considers to be Confidential or
Attorneys’ Eyes Only Information. In the case of documents or materials produced by a third
party, any Party wishing to designate any materials or documents as “Confidential” or “Attorneys’
Eyes Only” under the terms of this Order shall give notice to all parties to this action of the
designations within fourteen (14) days of receipt of the documents. During the 14-day period, all
third party documents shall be deemed to be confidential or attorneys’ eyes only per the requested
designations. In the case of deposition transcript pages, the designating party shal! advise opposing
counsel of the specific pages to be maintained in confidence, if any, within fourteen (14) days after
the receipt of the transcript of the deposition, if such request for a confidential or attorneys’ eyes
only designation is not made at or during the deposition. Counsel must make a good faith attempt
to designate only those materials which contain sensitive business or personnel matters, not
available to the general public, as Confidential or Attorneys’ Eyes Only Information. During the
14-day period, the entire deposition transcript shall be deemed to be confidential and attorneys’
eyes only until specific designations are made..
Further, at the beginning of any physical inspection of any tangible item, premise, or thing
or portion thereof, either party, through counsel, may declare the inspection itself, and any and all
visual observations, measurements, drawings, depictions, photographic and videotaped images,
audio-taped and transcribed audio-taped information, recordings of any kind, notes, and any
documents received or generated related to the physical inspection as containing Confidential and
Attorneys’ Eyes Only Information.
2.03 Disputes as to Confidential or Attorneys’ Eyes Only Information.
A party may object to the designation of particular Confidential or Attorneys’ Eyes Only
Material by giving written notice to the party designating the disputed information. The written
notice shall identify the information to which the objection is made. If the parties cannot resolve
the objection within ten (10) business days after the time the notice is received, it shall be the
obligation of the party designating to pursue the matter and seek relief within (10) additional
business days in compliance with the specific rules of this Court as outlined in Dkt. #10 (inter alia,
requiring that the parties first meet and confer in good faith and, if there is an impasse, then file a
joint report discussing the discovery disagreement). If such a joint report to the Court on the
discovery impasse is timely filed within those ten (10) additional business days, the disputed
information shall be treated as Confidential or Attorneys’ Eyes Only Material under the terms of
this Protective Order until the Court rules on the issue. If the designating party fails to seek Court
intervention within the prescribed time, the disputed information shall lose its designation as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY and shall not thereafter be treated as
Confidential or Attorneys’ Eyes Only Material in accordance with this Protective Order. In
connection with a motion filed under this provision, the party designating the information as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY shall bear the burden of establishing that good
cause exists for the disputed information to be treated as Confidential or Attorneys’ Eyes Only
Material.
ii. AUTHORIZED USE OF CONFIDENTIAL OR ATTORNEYS’ EYES
ONLY INFORMATION
3.01 Use of Confidential or Attorneys’ Eyes Only Information.
Confidential and Attorneys’ Eyes Only Information shall not be used or shown,
disseminated, copied or in any way communicated to any person for any purpose whatsoever, other
than as required for the preparation and trial of this action, including any appeals, and only in
compliance with this Order. Confidential and Attorneys’ Eyes Only Information shall not be used
for competitive purposes. No person shall under any circumstances sell, offer for sale, advertise
or in any way disclose Confidential or Attorneys’ Eyes Only Information (e.g., no person shall
permit the viewing, dissemination, copying, recording, duplicating, transmitting or sharing of
Confidential or Attorneys’ Eyes Only Information). Counsel for Plaintiff and Defendant shall take
necessary and reasonably proper precautions to prevent the unauthorized or inadvertent disclosure
or distribution of any Confidential or Attorneys’ Eyes Only Information.
A. Disclosure of Confidential Information
Except with the prior written consent of counsel for the party designating the information
or upon further order of this Court, disclosure of Confidential Information shall be limited to the
following persons:
(i) attorneys of record for any of the parties and necessary employees of the
attorneys of record or the law firm of the attorneys of record in this case;
(ii) all outside experts and consultants, who are not employees, officers,
directors, or representatives of any party, retained by the parties and whose
assistance is necessary in the preparation and trial of this action, and who
have a need related to this litigation to review the Confidential Information,
as well as the employees of the outside experts and consultants or the firm
of such experts and consultants who have a need related to this litigation to
review the Confidential Information;
(iii) all named parties who have made an appearance in this lawsuit;
(iv) the Court, Court Clerk and Court personnel working on the Action; and
(v) □ Court stenographer and outside copy service whose function requires them
to have access to defendant’s protected documents.
B. Disclosure of Attorneys’ Eyes Only Information
Except with the prior written consent of counsel for the party designating the information
or upon further order of this Court, disclosure of Attorneys’ Eyes Only Information shall be limited
to the following persons:
(i) attorneys of record for any of the parties and necessary employees of the
attorneys of record or the law firm of the attorneys of record in this case;
(ii) all outside experts and consultants, who are not employees, officers,
directors, or representatives of any party, retained by the parties and whose
assistance is necessary in the preparation and trial of this action, and who
have a need related to this litigation to review the Attorneys’ Eyes Only
Information, as well as the employees of the outside experts and consultants
or the firm of such experts and consultants who have a need related to this
litigation to review the Attorneys’ Eyes Only Information;
(iii) the Court, Court Clerk and Court personnel working on the Action; and
(iv) | Court stenographer and outside copy service whose function requires them
to have access to defendant’s protected documents.
Copies of Confidential or Attorneys’ Eyes Only Information bearing a !abel specified in
paragraph 2.01 and 2.02 hereof shall not be disclosed to any person, other than those listed in
paragraph 3.01, by the party to whom they are produced, unless they become a part of the public
record of this action.
3.02 Prerequisites to Disclosure.
No person listed in Paragraph 3.01(A)(i) - (iii) or 3.01(B)(i)-(ii) shall be allowed access to
Confidential or Attorneys’ Eyes Only Information unless each such person is (1) given a copy of
this Order and thoroughly advised as to its terms by the respective party’s attorney; and (11) agrees
in writing to strictly comply with the terms of this Order through completion of the form that is
attached to this Order as Exhibit 1. For the persons listed in Paragraph 3.01(A)(i) and 3.01(B)(i),
the requirements of this Paragraph 3.02 can be met by the attorney of record completing the form
attached as Exhibit 1 on behalf of the attorney and the attorney’s agents or employees.
Before disclosing Confidential or Attorneys’ Eyes Only Material to any person listed in
paragraphs 3.01(A)(i) - (ili) or 3.01(B)(i) — (ii) herein who is known or considered to be a
competitor (or an employee or consultant of a competitor of the party that so designated the
discovery material), the party wishing to make such disclosure shall give at least seven (7) business
days’ advance notice in writing to the counsel who designated such discovery material as
Confidential or Attorneys’ Eyes Only Information, stating that such disclosure will be made,
identifying by subject matter category the discovery material to be disclosed, and stating the
purposes of such disclosure. If, within the seven (7) business day period, an application is made
to the Court objecting to the proposed disclosure, disclosure is not permissible until the Court has
ruled on such application. As used in this paragraph, the term “Competitor” means any medical
device manufacturer, distributor or seller other than Wright Medical Technology, Inc., Wright
Medical Group, Inc., Cremascoli Ortho, Wright-Cremascoli, or Wright Medical Europe.
For each person in 3.01(A)(i) - (iii) or 3.01(B)(i) — (ii) to whom disclosure of Confidential
or Attorneys’ Eyes Only Information is made, each respective counsel shall retain a copy of the
signed agreement pursuant to the requirements of the preceding paragraph.
3.03 Depositions.
The confidentiality requirements of this Order extend to oral depositions and depositions
on written questions. Any individual not authorized by this Protective Order to be a recipient of
Confidential or Attorneys’ Eyes Only Information may be excluded from a deposition while such
information is being elicited.
3.04 Filing Confidential or Attorneys’ Eyes Only Information.
This order does not authorize the filing of any documents or other matter under seal. Per
Fed. R. Civ. P. 5.2, the parties should also employ redaction if practicable before any filing under
seal. Documents or other matter may be sealed only if authorized by statute, rule, or order of the
Court. A party seeking to file such items under seal shall file and serve a motion or submit a
proposed stipulated order that sets forth (i) the authority for sealing; (ii) an identification and
description of each item proposed for sealing; (iii) the reason that sealing each item is necessary;
(iv) the reason that means other than sealing are not available or unsatisfactory to preserve the
interest advanced by the movant in support of sealing; (v) a memorandum of legal authority
supporting sealing. A party shall not file or otherwise tender to the Clerk any item proposed for
sealing unless the Court has granted the motion or entered the proposed stipulated order required
by this section.
Confidential or Attorneys’ Eyes Only Information shall not be filed with the Court except
when required in connection with matters pending before the Court.
In the case of Confidential or Attorneys’ Eyes Only Information being filed electronically,
the filing party shall be responsible to file the documents under seal pursuant to all applicable
Local Civil Rules.
In the case of Confidential or Attorneys’ Eyes Only Information being provided to the
Court as courtesy copies, the filing party shall be responsible to file the documents pursuant to all
applicable Local Civil Rules and in a sealed envelope, clearly marked:
THIS DOCUMENT CONTAINS CONFIDENTIAL
OR ATTORNEYS’ EYES ONLY INFORMATION
COVERED BY A PROTECTIVE ORDER AND
IS SUBMITTED UNDER SEAL PURSUANT TO THAT
PROTECTIVE ORDER. THE CONFIDENTIAL CONTENTS OF
THIS DOCUMENT MAY NOT BE DISCLOSED WITHOUT
EXPRESS ORDER OF THE COURT
and shall remain sealed while in the office of the Clerk so long as they retain their Confidential or
Attorneys’ Eyes Only designation. Said Confidential or Attorneys’ Eyes Only Information shall
be kept under seal until further order of the Court; however, Confidential or Attorneys’ Eyes Only
Information and other papers filed under seal shall be available to the Court, to counsel of record,
and to all other persons entitled to receive the confidential information contained therein under
the terms of this Order.
3.05 Use of Confidential or Attorneys’ Eyes Only Information during the course
of litigation and at trial.
Confidential or Attorneys’ Eyes Only Information may be included in whole or in part in
pleadings, motions, briefs, or otherwise filed with the Court as necessary so long as the filing party
complies with the requirements of all applicable Local Civil Rules outlined in paragraph 3.04,
above.
IV. PROCEDURES UPON THE CONCLUSION OF THIS LITIGATION
4.01 Return of materials containing Confidential or Attorneys’ Eyes Only
Information.
Within thirty (30) days after entry of dismissal or of final judgment in this action, including
appeals, all documents and information, together with all copies thereof that have been and remain
designated as including Confidential or Attorneys’ Eyes Only Information of Plaintiff or
Defendant, pursuant to this Protective Order, shall be collected and returned to Plaintiff or
Defendant, as the case might be. Additionally, Plaintiff's and Defendant’s counsel shall cooperate
in confirming that said documents and information in the possession of persons listed in 3.01(A)(i)
- (iii) and 3.01(B)(i) — (ii) to whom disclosure has been made have been returned to Plaintiff or
Defendant, as the case might be. If requested by Plaintiff or Defendant, all persons listed in
3.01(A)(i) - (ii) and 3.01(B)(i) — Gi) to whom any Confidential or Attorneys’ Eyes Only
Information was disseminated shall sign a certification to verify that all documents and materials
in their possession, containing Confidential or Attorneys’ Eyes Only Information, have been
returned.
4.02 Continuing jurisdiction of the Court.
After termination of this litigation, the provisions of this Order shall continue to be binding
for one year unless otherwise ordered by the Court. This Court retains and shall have jurisdiction
over the parties and recipients of Confidential or Attorneys’ Eyes Only Information for
enforcement of the provisions of this Order during that period.
V. MISCELLANEOUS PROVISIONS
5.01 Binding effect.
This Order shall be binding upon the parties, their attorneys, and their successors,
executors, personal representatives, administrators, heirs, legal representatives, assigns,
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employees, agents, independent contractors and other persons or organizations over which they
have control.
5.02 No waiver or admission.
Neither the taking of any action in accordance with the provisions of this Protective Order,
nor the failure to object thereto, shall be construed as a waiver of any claim or defense in this
action. The entry of this Protective Order shall not be construed as a waiver of any right to object
to furnishing information in response to a discovery request or to object to a requested inspection
of documents or things. Nothing contained in this Protective Order, and no action taken in
compliance with it, shall: (a) operate as an admission by any party or person that any particular
document or information is or is not confidential; (b) operate as a waiver of any claim or defense
in this action; or (c) prejudice in any way the right of any party or person to seek a Court
determination of whether or not particular documents or information should be disclosed or, if
disclosed, whether or not they should be deemed Confidential or Attommeys’ Eyes Only
Information and subject to this Protective Order.
5.03 Inadvertent Disclosure by Producing Party.
The inadvertent or unintentional disclosure by the Producing Party of Confidential or
Attorneys’ Eyes Only Information, either by way of document production or by deposition
testimony, regardless of whether the information was so designated at the time of disclosure, shall
not be deemed a waiver in whole or in part of a party’s claim of confidentiality, either as to the
specific information disclosed or as to any other information relating thereto or concerning the
same or unrelated subject matter. Any such inadvertently or unintentionally disclosed material by
a Producing Party not designated as such at the time of its release shall be designated as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY per the definitions in this Order as soon as
reasonably possible after the Producing Party becomes aware of the erroneous release and shall
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thereafter be treated as confidential hereunder. No liability shall attach for the Receiving Party’s
disclosure of inadvertently or unintentionally disclosed Confidential or Attorneys’ Eyes Only
Material from the time of receipt of that material until such time as the Producing Party properly
designates it as confidential.
5.04 Privileges and Objections.
Nothing in this Order shall preclude any party from asserting the attorney-client, work
product, or any other applicable privilege as to any document or information. It is understood and
agreed that nothing herein constitutes a waiver of the right of any party to raise or assert any
objections, including but not limited to defenses or objections with respect to the use, relevance,
or admissibility at trial of any evidence. This Order shall not be construed as a waiver by any party
of any legally cognizable privilege or protection to withhold any document or information, or of
any right that any party may have to assert such privilege or protection at any stage of the
proceeding.
5.05 Termination of Litigation.
This Order, insofar as it restricts the communication and use of Confidential and Attorneys’
Eyes Only Information, shall survive and continue to be binding after the conclusion of this action
for one year from such conclusion, and the Court shall retain jurisdiction over these parties and
this matter for the purpose of ensuring compliance with the Order and granting such other and
further relief as may be necessary during that period.
At the conclusion of this action, including any appeals, all documents, records, tangible
materials, or other information designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
and (except as provided herein with respect to documents reflecting privileged communication or
attorney work product) and all copies of any of the foregoing shall be promptly returned by counsel
for the Receiving Party to counsel for the Producing Party. In the alternative, to the extent that
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documents reflecting privileged communications or attorney work product contain information
designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY, the Receiving Party may, in lieu
of returning such documents to the Producing Party, certify in writing to the Producing Party,
within 30 days of the termination of the litigation, that such documents have been destroyed.
5.06 Relief from Order.
Any person may request the Court to grant relief from any provisions of this Protective
Order.
5.07 Exclusions.
Nothing herein shall impose any restrictions on the use or disclosure by any party or any
witness of documents or information obtained lawfully by any party or any witness independently
of the discovery proceedings in this action, whether or not such documents or information are also
obtained from Plaintiff or Defendant, as the case might be, in this action. Nothing in this
Protective Order shall prevent a party or non-party from using or disclosing its own documents or
information for any purpose, regardless of whether they are designated confidential or attorneys’
eyes only under this Protective Order. Nothing in this Protective Order shall prevent a party from
disclosing information to any person who authored, or who otherwise lawfully received or
possessed such information, including, without limitation, for purposes of obtaining additional
discovery from that person.
5.08 The Court retains the final and complete authority to redesignate any confidential
document as a public document.
ORDERED thisthe _ /7& __ day of __fomvany 20207
weet ripen
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Dated: January 11, 2020 /s/ Alex C. Davis, Esq.
JONES WARD PLC
The Pointe
1205 E. Washington St., Suite 111
Louisville, KY 40206
Phone: (502) 882-6000
Fax: (502) 587-2007
alex@jonesward.com
Christopher D. Jennings, Esq,
(AR Bar No. 2006306)
LINVILLE JOHNSON PLLC
610 President Clinton A venue
Suite 310
Little Rock, AR 72201
Phone: (501) 372-13000
Fax: (888) 505-0909
chris@yourattomey.com
Attorneys for Plaintiff
s/ Scott Andrew Irby
Scott Andrew Irby (AR Bar No, 99192)
WRIGHT, LINDSEY & JENNINGS
200 West Capitol Avenue
Suite 2300
Little Rock, AR 72201-3699
Phone (501) 212-1359
sirby@wlj.com
J. Scott Kramer, Esq. (PA Bar No. 32389)
Anne A. Gruner (PA Bar No, 323863)
DUANE MORRIS LLP
30 South 17" St.
Philadelphia, PA 19103-4196
Phone: 215-979-1197
Fax: 215-689-0844
JSKramer@duanemorris.com
AAGruner@duanemorris.com
Attorneys for Defendant Wright Medical
Technology, Inc.
Exhibit 1
AGREEMENT CONCERNING CONFIDENTIALITY
Ro beeing duly sworn, state that:
1. Myaddressis
2. My present employer is
and the address of my present employment is
3. My present occupation or job description is
4, I have received a copy of the Protective Order in this case.
5, I have carefully read and understand the provisions of the Protective Order.
6. I will comply with all of the provisions of the Protective Order.
7. I will hold in confidence and not disclose to anyone not qualified under the
Protective Order, any CONFIDENTIAL OR ATTORNEYS’ EYES ONLY INFORMATION or
any words, summaries, abstracts, or indices of CONFIDENTIAL OR ATTORNEYS’ EYES
ONLY INFORMATION disclosed to me.
8. I will return all CONFIDENTIAL OR ATTORNEYS’ EYES ONLY
INFORMATION and summaries, abstracts and indices thereof which come into my possession,
and documents or things which I have prepared relating thereto, to counsel for the party by whom
I am employed or retained.
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